L A N D L AW

R E F O R M

Achieving Development

Policy Objectives

John W. Bruce, Renée Giovarelli, Leonard Rolfes, Jr., David Bledsoe,

and Robert Mitchell,

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Regulatory Frameworks for Water Resources Management:

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Legal Aspects of Financial Services Regulation and the Concept

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Land Law Reform

Achieving Development Policy Objectives

Law, Justice, and Development

The Law, Justice, and Development series is offered by the Legal Vice Presidencyof the World Bank to provide insights into aspects of law and justice that are rel-evant to the development process. Works in the series present new legal and judicial reform activities related to the World Bank’s work, as well as analyses ofdomestic and international law. The series is intended to be accessible to a broadaudience as well as to legal practitioners.

Series Editor: Salman M. A. SalmanEditorial Board: Hassane Cisse, Alberto Ninio, Sophie Smyth, and Kishor Uprety

Land Law Reform

Achieving Development Policy Objectives

John W. BruceSenior CounselLegal Vice Presidency, World Bank

Renée GiovarelliStaff AttorneyRural Development Institute

Leonard Rolfes, Jr.Senior AttorneyRural Development Institute

David BledsoeSenior AttorneyRural Development Institute

Robert MitchellSenior AttorneyRural Development Institute

THE WORLD BANKWashington, D.C.

© 2006 The International Bank for Reconstruction and Development / The World Bank1818 H Street NWWashington DC 20433Telephone: 202-473-1000Internet: www.worldbank.orgE-mail: feedback@worldbank.org

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ISBN-10: 0-8213-6468-5 e-ISBN: 0-8213-6469-3 ISBN-13: 978-0-8213-6468-0 DOI: 10.1596/978-0-8213-6468-0

Library of Congress Cataloging-in-Publication Data

Land law reform : achieving development policy objectives / John W. Bruce . . . [et al.].p. cm — (Law, justice, and development)

Includes bibliographical references and index.ISBN-10: 0-8213-6468-5ISBN-13: 978-0-8213-6468-0

1. Land reform—Law and legislation. I. Bruce, John W. II. Series

K3871.3.L36 2006346.04'4—dc22

2005057742

Contents

List of Tables and Boxes vii

Foreword ix

Abstract xi

Acknowledgments xiii

Acronyms and Abbreviations xv

Chapter 1 Introduction: Reforming Land Law to Achieve Development Goals 1John W. Bruce

1.1 The Potential of Land Law 11.2 The Pressing Need for Reform 31.3 New Development Goals 5

Chapter 2 Reform of Land Law in the Context of World BankLending 11John W. Bruce

2.1 Introduction 112.2 Land Law and the Bank’s Objectives 122.3 General Guidance on Land Policy and Law Reform 142.4 Legal Guidance: The Operational Policies 172.5 Policy and Law Reform Outside the Project Context 202.6 Covenants and Conditions as Contractual Tools 212.7 Reform in the Context of Development Policy Lending 232.8 Reform in the Investment Project Context 272.9 Land Administration Projects 282.10 Land Reform 472.11 Natural Resource Management 512.12 Process and Style in Land Law Reform 552.13 New Frontiers: Into the Land Market 632.14 Conclusion 64

v

vi Contents

Chapter 3 Overcoming Gender Biases in Established and Transitional Property Rights Systems 67Renée Giovarelli

3.1 Introduction 673.2 Creating New Rights to Land 703.3 Creating Secure Rights through Titling Projects 793.4 Markets 843.5 Household Allocation of Land 883.6 Women’s Knowledge of and Ability to Enforce Land Rights 1013.7 Conclusion and Recommendations 102

Chapter 4 A Framework for Land Market Law with the Poor in Mind 107Leonard Rolfes, Jr.

4.1 Introduction 1074.2 Impact of the Land Market on the Rural Poor 1084.3 A Framework for Land Market Law with the Poor in Mind 1114.4 Bringing Customary and Informal Practices into the

Legal System 1394.5 Conclusion 142

Chapter 5 Can Land Titling and Registration Reduce Poverty? 143David Bledsoe

5.1 Introduction 1435.2 Titling and Registration Programs 1445.3 Titling and Registration and Economic Growth 1515.4 Titling and Registration and Poverty Alleviation 1605.5 Conclusions and Recommendations 172

Chapter 6 Property Rights and Environmentally Sound Management of Farmland and Forests 175Robert Mitchell

6.1 Introduction 1756.2 Framing the Issues 1786.3 Property Rights: The Importance of Enforceability 1806.4 Policies, Legal Tools, and Environmental Impacts 1896.5 Conclusion 224

Chapter 7 Conclusion 227John W. Bruce

Selected Bibliography 231

Index 249

List of Tables and Boxes

Table 3.1 Attitudes Toward Female Ownership of Land 86

Table 6.1 Control Right Assertion and Resource Use 182

Table 6.2 International Instruments Related to Land and Resource Use and the Environment 186

Table 6.3 Resource Management Options and Environmental Externalities 190

Box 4.1 Legal Aid in Action: Vladimir Province, Russia 130

Box 4.2 Legal Aid in Action: The Kyrgyz Republic 131

Box 4.3 Land Transfers by Custom in Uganda 141

Box 6.1 Negative Environmental Impacts Associated with Farming and Forestry 176

Box 6.2 Water Use Regulation and Land Conservation 192

Box 6.3 Environmental Stewardship—a Relative Concept 211

vii

ix

Foreword

Land is a critical asset for economic growth, social development, and poverty alle-viation. The terms on which land is held, used, and transferred have important con-sequences for economic growth, the distribution of wealth, and alleviation ofpoverty. We live in an age of profound and often rapid transitions in the economiesand societies of nations. It is notable that in those transitional economies that aremoving to rely more heavily on market forces, land law reform is commonly nearthe top of the national reform agenda. Difficult policy choices are requiredbecause land tenure serves a multitude of purposes. Land is valued by some as aninvestment opportunity, by others as a safety net, and by yet others as critical totheir cultural identity.

Accordingly, land law reform is increasingly becoming a pressing need inmany parts of the world. Many developing countries seek to move beyond thelaws inherited from their colonial past or to update their land law in key areas likecondominium law or the law relating to mortgages. Others grapple with thesocially complex issue of the future of customary land tenure and the traditionalinstitutions associated with it.

This book examines issues at the forefront of the debate on land law reform,pays particular attention to how reform options affect the poor and disadvantaged,and recommends strategies for alleviating poverty more effectively through landlaw reform. It reviews the role of the World Bank in land law reform, examiningissues of process as well as substance. It also identifies key challenges and direc-tions, and stresses the need to design law reforms in ways that suit diverse eco-nomic, legal, and institutional environments.

The Legal Vice Presidency is pleased to offer this publication and hopes it willdeepen the understanding of the role of land law reform in poverty alleviation,gender equity, and environmental protection.

Scott B. WhiteActing Vice President and General Counsel

World Bank

February 2006

Abstract

This book is a contribution to comparative thinking on reform of the law relatingto land. It examines the implications for land law reform in the broadening ofdevelopment goals beyond growth to include environmental protection, povertyeradication, and achievement of gender equity, and it reviews a broad range ofexperience in land law reform. After the introductory chapter, chapter 2 examineshow land law reform is achieved through World Bank initiatives. It reviews stepsthe Bank has taken to achieve comprehensive reforms of land law in the contextof natural resource management and land reform programs and land administra-tion projects. It also analyzes lessons learned from various land law reformprocesses. Chapter 3 addresses reform of rules affecting women’s access to andrights in land. The topic is one in which broad recommendations are not neces-sarily easy due to cultural and other norms governing women’s rights and free-doms regarding land. Chapter 4 examines how to develop land markets whileminimizing adverse effects and enhancing positive impacts on the poor. Chap -ter 5 discusses the importance of titling and registration of land rights, reviewsconcepts that are supported by the Bank in many of its land projects, anddescribes how titling and registration can affect economic growth and the allevi-ation of poverty. Chapter 7 deals with issues of equity and poverty in the contextof conservation and environmental protection of farms and forests. It examinesthe role of individual property rights, as well as the legal tools that can be used toencourage conservation. The conclusion draws together significant aspects fromall the chapters that are needed for effective land law reform.

xi

Acknowledgments

The authors would like to acknowledge the help and support of a number of enti-ties and individuals during the preparation of this study, which was carried outcollaboratively by the Environmentally and Socially Sustainable Development(ESSD) and International Law Unit (LEGEN) of the Legal Vice Presidency of theWorld Bank and the Rural Development Institute (RDI) of Seattle, Washington.

The authors gratefully acknowledge the encouragement and advice providedthroughout the process of preparation by Roberto Dañino, former Senior VicePresident and General Counsel of the World Bank; David Freestone, DeputyGeneral Counsel, Advisory Services; and Salman M. A. Salman, Lead Counsel(LEGEN). For managing this effort on the RDI end, our thanks go to David Bled-soe, Senior Attorney with RDI. Thanks are also due for the assistance providedby staff of both institutions, and in particular to Shéhan de Sayrah, Counsel(LEGEN), for his editorial assistance.

Several friends and colleagues reviewed drafts and their comments con-tributed greatly to the final product. Jon Lindsay, land law expert from the Foodand Agriculture Organization’s Development Law Service, as external reviewerfor the entire volume made invaluable comments. Within the Bank, chapters werereviewed and commented upon by Gillian Brown, Malcolm Childress, CharlesDi Leva, Isabel Lavadenz Paccieri, George Ledec, and Wael Zakout. GershonFeder provided comments on a particular portion of one paper. We extend ourthanks and appreciation to all of them.

xiii

Acronyms and Abbreviations

AusAID Australian Agency for International Development

BP Bank Procedure Notes

CAS Country Assistance Strategies

CIS Commonwealth of Independent States

DCA Development Credit Agreement

DFID Department for International Development

EU European Union

FAO Food and Agriculture Organization of the United Nations

GIS Geographic Information System

GTZ Deutsche Gesellschaft für Technische Zusammenarbeit GmbH

HRS Household Responsibility System

IBRD International Bank for Reconstruction and Development

ICCPR International Covenant on Civil and Political Rights

IDA International Development Association

IFAD International Fund for Agricultural Development

ILC International Land Commission

ILO International Labour Organization

JSDF Japan Social Development Fund

Lao PDR Lao People’s Democratic Republic

LDP Letter of Development Policy

LWU Lao Women’s Union

MALR Market-Assisted Land Reform

MDG Millennium Development Goals

NGO Nongovernmental organization

OD Operational Directive of the World Bank

OP Operational Policies of the World Bank

xv

xvi Acronyms and Abbreviations

PAD Project Appraisal Document

PNG Papua New Guinea

PRR Policy Research Report

PRSC Poverty Reduction Support Credits

PRSP Poverty Reduction Strategy Papers

PSIA Poverty and Social Impact Analysis

RDI Rural Development Institute

RPF Resettlement Policy Framework

SAL Structural Adjustment Loans

TA Technical assistance

TPLF Tigrean People’s Liberation Front

UNDP United Nations Development Programme

UNCED United Nations Conference on Environment and Development

USAID United States Agency for International Development

USDA United States Department of Agriculture

C H A P T E R 1

Introduction: Reforming Land Law to Achieve Development Goals

John W. Bruce*

1.1 The Potential of Land Law

The role of land tenure—property rights in land—has been a major preoccupa-tion in development discourse from the time of giants like Adam Smith and KarlMarx through to today’s luminaries, such as Hernando de Soto. In spite of theirsubstantially different perspectives, none of these worthies ever doubted the crit-ical importance of land and property rights in the development process. Butbecause land issues are knotty and often political, the enthusiasm of developmentagencies for tackling them has waxed and waned.

Today at the World Bank, as in other international development organizations,the Millennium Development Goals (MDGs), with their emphasis on povertyalleviation, gender equality, and environmental conservation, have refocusedattention on land issues. A substantial number of recent studies stress that differ-ences not only in income but also in assets account for persistent poverty. Inrecent years several donor organizations have struggled with such issues as theappropriate roles for state and private actors, the implications of different patternsof distribution of land, and the relationship between property rights and incentives. The World Bank recently produced a Policy Research Report (PRR)on Land,1 and the British2 and German3 aid agencies have published broad land-policy documents. The International Land Coalition (consisting of

1

* John W. Bruce is a former Senior Counsel and specialist in land law in the Environ-mentally and Socially Sustainable Development (ESSD) and International Law Unit ofthe Legal Vice Presidency of the World Bank. He is a former Director of the Land TenureCenter of the University of Wisconsin–Madison. 1 World Bank & Klaus Deininger, Land Policies for Growth and Poverty Reduction.A World Bank Policy Research Paper (World Bank & Oxford Univ. Press 2003).2 Department for International Development (DFID), Better Livelihoods for Poor People:The Role of Land Reform (DFID 2003). 3 Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH, Land Tenure inDevelopment Cooperation (GTZ 1998).

2 Land Law Reform

Non-governmental Organizations [NGOs], multilateral organizations, and govern-ments and based at the International Fund for Agricultural Development [IFAD])has sought to define a common platform.4

What is the relationship between land policy and reform of the law relating toland? They are certainly not the same thing. Most land policy statements are sogeneral that they provide only broad guidance for law reform; most laws relatingto land leave obscure to readers the policies that lie behind them. They are never -theless closely connected. The goods that land policy promises are, in the termi-nology current in the Bank’s Legal Vice Presidency, “law-dependent public andprivate goods.” The law relating to land is a critical tool in realizing land policies.Policy reform logically precedes law reform, but law reform seeks to translatethose policies into action. A good law is a critical step, even though follow-through is equally important in determining whether the reform delivers thegoods or fails to do so.

This is because, while policy determines broad directions, law answers thequestion, “What must be done to get us there?” The law provides commands toofficials and citizens alike. It seeks to mobilize incentives and disincentives forbehavior. Law must be far more specific than policy about what is expected, andit must balance the competing claims of different societal objectives in equallyspecific terms. For example, “land tenure security” is a staple objective in state-ments about land policy reform, but usually it is only in the subsequent work onlaw reform that competing claims of diverse stakeholders are accommodated anda balance stuck between security of tenure and other legitimate societal objec-tives, such as environmental protection, equitable land distribution, and theState’s need for compulsory acquisition of land for public purposes.

It is difficult to overstate the extent to which laws relating to land affects thelives and welfare of citizens. These laws provide not only rules about land rightsbut also regulatory frameworks and administrative competences that are the basisfor mobilizing nonlegal incentives. This book deals with this larger body of lawrather than “land law” narrowly defined.5 Through its legal enactments relating

4 International Land Coalition (ILC), Towards a Common Platform on Access to Land:The Catalyst to Reduce Rural Poverty and the Incentive for Sustainable Natural ResourceManagement (ILC 2003).5 There is remarkably little in the literature on land law from a comparative developmentperspective, but two recent collections of essays give hope that the situation may beimproving: see Land Law in Comparative Perspective (Maria Elena Sanchez Jordan &Antonio Gambaro, eds., Kluwer Law Intl. 2002); and Patrick McAuslan, Bringing theLaw Back In: Essays in Land, Law and Development (Ashgate Publishing Ltd. 2003). Anexcellent recent synthesis is Jon Lindsay’s “Chapter 8. Land” in Law and SustainableDevelopment Since Rio: Legal Trends in Agriculture and Natural Resource Management,FAO Legislative Study 73, 203–243 (FAO 2002).

Introduction: Reforming Land Law to Achieve Development Goals 3

to land, the State creates property rights, determines the scope of the rights andobligations that accompany them, and provides for regulating use of land. Thisbody of law is fundamental in that it regulates our possession and use of the nat-ural resource that underlies and supports much of the life of our planet, provid-ing the physical underpinning of our environment, our productive activities, andour social and political constructs.

Land laws set the terms for transactions in land; in so doing they help deter-mine the efficiency of land markets and shape patterns of land distribution. Theyin part determine the distribution of development opportunities and the incidenceof poverty. The terms on which landholders hold their land affect their incentivesto husband or neglect it. Land and property rights have deep, emotive social andcultural significance in the societies of many developing countries becauseaccess to land is intimately related to kinship and identity, and control of land isthe basis of political and state power.

1.2 The Pressing Need for Reform

We are seeing unprecedented land law reform activity today. In part this is due tothe broad trend toward market liberalization and the demand for stronger privateproperty rights in land. The great competing political dispensations of the lastcentury had quite different ideas about rights in land. Today the swing to privati-zation and expanded roles for markets in countries transitioning out of dirigisteeconomic management have created almost overnight the need for entire nationalsystems of real property law. In framing these new systems, it is necessary toaddress not only the needs of economic growth, as important as these may be, butalso new demands, such as gender equity, poverty alleviation, and environmentalprotection.

In countries where the State had appropriated and attempted direct manage-ment of natural resources—a much more common phenomenon—policymakersare rethinking the appropriateness of their property solutions in light of extensivefailures in state natural resource management. At the same time there hasemerged a more democratic ethos that requires that land tenure reflect popularchoices rather than technocratic “fixes” or ideology-driven solutions. Decentral-ization holds out the promise not just of more effective implementation ofnational programs but also of legal regimes that better accommodate diversityand respond to local needs and preferences. In African and Southeast Asian coun-tries, effective reconciliation of systems of statutory law and customary land lawis the primary challenge for legal reform.

Beyond these driving forces, there is the more general need for modernization.Condominium law and community land trusts are examples of recent innovationsin land law that are being widely emulated in the developing world. But many

4 Land Law Reform

countries still work with colonial-era statutes. Africa is a veritable Valhalla forBritish statutes from the colonial period; though they may have been less thanadequate in local circumstances, they nonetheless live on there long after theyhave been repealed in Britain.6 Environmental and other values receiving greaterattention in our time need to be factored into land policy and, where appropriate,embedded in the national law relating to land.

There is also a pressing need in many countries for simplification. One oftenfinds layer upon layer of land legislation like geologic strata, piled upon eachother without much attention to repeals or reconciliation and in desperate need ofrestructuring for accessibility and intelligibility.

Law reform during major transitions can be a contentious and complexprocess in any case, but there are special difficulties relating to land that tend tomake law reform in this arena even longer and more difficult:

• Land is a multipurpose resource, providing the basis for both security andgrowth—purposes that are sometimes in competition.

• The stakeholders affected by land law reform are numerous and highly diverse; they value potential uses differently, so consensus is hard toobtain.

• Land issues have deep cultural and historical dimensions that make reformof the law relating to land a delicate matter in many societies.

• Those with vested interests, both private and bureaucratic, can be expectedto resist reform.

Even where most stakeholders realize that reform is inevitable, struggles overchanges in access to land and the power to control access can be intense.

Finally, it should be admitted that much remains to be learned about how touse law to achieve needed social and economic changes. Stipulating thedesired situation in a law is not enough. The law must change incentives andstructure a process of change. All of us who work in this area know of elegantlaws that have had little impact on behavior, some for want of implementationand others in spite of serious implementation efforts. Political will, financialand institutional capacity, and beneficiary awareness all play important roles.What works in changing behavior through law will differ from one politicaland legal culture to the next; the question surfaces again and again in the chap-ters that follow.

6 Patrick McAuslan, Only the Name of the Country Changes: The Diaspora of “European” Land Law in Commonwealth Africa, in McAuslan, id., at 59–83, is very goodvalue on this phenomenon.

Introduction: Reforming Land Law to Achieve Development Goals 5

1.3 New Development Goals

Because access to and use of land is central to the MDGs, they provide a con-venient conceptual framework in which to discuss critical contemporary issues ofland law reform, such as elimination of poverty, achievement of gender equality,and protection of natural resources. Chapter 2 below examines how one donor,the World Bank, in working with client countries uses land law reform as a toolfor poverty reduction and growth. Chapter 3 looks at how land law reforms canachieve gender equity, while chapters 4 and 5 explore how land titling and landmarket reforms can be more sensitive to the needs of the poor. Chapter 6 exam-ines how law reforms relating to natural resources and the environment impactthe poor. Finally, chapter 7 brings together what has been learned to see whatcommon themes emerge.

Chapter 2, “Reform of Land Law in the Context of World Bank Lending,” con-siders how land law reform is achieved through World Bank initiatives. The Bankhas not always clearly enunciated the policies behind such law reforms. There isno Operational Policy on Land, though a number of operational policies, such asthose on Involuntary Resettlement and Indigenous Peoples, have land law con-tent, spelling out rights that must be honored in the context of Bank projects. Thethinking within the Bank on land policies was, however, restated in 2003 in a newPRR on Land Policies for Growth and Poverty Reduction.7

The Bank seeks policy changes and law reforms in the context of developmentpolicy lending (formerly called adjustment lending). The central purpose of suchloans is reform of policy and law. Poverty Reduction Support Credits (PRSCs),the newest form of development policy lending, provide unique opportunities forthe Bank to press for comprehensive legal reforms and may be the future of theBank’s involvement in law reform.

However, much of the interaction between Bank staff and client governmentson reforms in land law still takes place in the course of investment lending, loansby the Bank to finance specific development activities. While the Bank some-times has pursued reform of land law in the context of natural resource manage-ment or land reform programs, the primary opportunity for land law reform liesin the Bank’s land administration projects. These projects assist governments ingaining control of their land resource and in implementing both policy and lawreforms. Sometimes the Bank may require basic reforms even before a projectwill be considered, such as concentration in a single agency of all the compe-tences needed for a successful program of systematic land titling and registration.It is also common for such projects to call for reforms in the legal framework for

7 See supra n. 1.

6 Land Law Reform

titling and registration itself so that the project can go forward efficiently. Whilechanges in law are sometimes made a condition of the loan, it is more commonthese days for the project to include a component that funds policy studies, pol-icy reform, and legal reform. The project becomes a forum in which reformissues can be assessed, solutions devised, and policy makers persuaded thatreforms are needed.

A final section of chapter 2 deals with lessons learned about process in landlaw reform. The thinking-out of policy reforms should precede and inform lawreform, and the more participatory the law reform, the greater the ownership ofthe reform by both the implementing agency and those who will be affected.However, in the time frames of project cycles, there is a premium on attainingreforms sooner rather than later. Often the project manager must “seize the day.”Political windows of opportunity for law reform can open and close in the spaceof a few months, and good practice in land law reform is frequently a casualty ofthe need to seize political opportunities.

In chapter 3, “Overcoming Gender Biases in Established and TransitionalProperty Rights Systems,” Renée Giovarelli examines reform of rules affectingwomen’s access to and rights in land. This is an area in which broad prescriptionsare difficult, given the cultural embeddedness of inheritance and other rules gov-erning women’s roles and rights with regard to land. Few areas provide so manyillustrations of the limits of law as an instrument of social change.

Analytically, the chapter deals with these issues as they arise in four situations:

• The creation of new rights by state action: This can come about when theState confers property rights, as in land settlement programs; privatizationof state or collective lands in societies transitioning from communism tomarket economies; and the individualization of customary land tenure sys-tems. The State must decide if it is conferring titles on individuals, onhouseholds, or even on the head of household as representing other house-hold members. Its decisions often disadvantage women. Remarkably, thesechoices are often not spelled out clearly; the vagueness generally works tothe disadvantage of women.

• Recording of land rights: The confirmation and recognition of existingrights by the State, for instance through land registration, is a process thatis often said to simply record rights that already exist. In practice, theprocess has sometimes altered or simplified rights recorded, to the disad-vantage of women and others. Recognition of informal unions and jointtitling of husbands and wives are important measures for avoiding negativeimpacts on women.

• The legal framework for land markets: The impacts of the legal frameworkaffect women’s access to land and their participation in land markets.

Introduction: Reforming Land Law to Achieve Development Goals 7

Women may fare differently in informal and formal land markets, it is sug-gested, and a thoughtful approach to gendered impacts should accompanyany liberalization of land markets.

• Intrahousehold allocations of land: It is here that the cultural element inland law makes itself felt most strongly, as women seek to gain and con-serve land rights at critical life events, such as inheritance, divorce, andbeing widowed. Bride-price and dowry condition expectations. Reformsare hard-won in this area and nowhere are the limits of law as an instrumentof coercion more evident. The task of reformers is to change minds as wellas laws.

The new development goals stress poverty reduction, but are our policy and lawreform prescriptions always compatible with poverty reduction? The Bank hasbeen a major proponent of market liberalization, and more specifically land mar-ket liberalization. Does land market liberalization have a positive impact on thepoor? There is lively debate on this both within and outside the Bank, and of coursethere is no pat answer that is correct for all times and places and time frames.

Leonard Rolfes, Jr., examines some answers in chapter 4, “A Framework forLand Market Law with the Poor in Mind.” He asks how land markets can bedeveloped while adverse effects on the poor are minimized and positive impactsare enhanced. The chapter first reviews the essentials required for effective devel-opment of land markets: a rule of law context, recognition of robust propertyrights, effective conflict resolution mechanisms, state restraint in taking privateland rights, and effective documentation of land rights. It then goes on to exam-ine ways to increase the efficiency of land markets. Since we know that small-holders can be highly efficient, markets that are better at recognizing efficiencyand rewarding it should benefit the land-poor. Essential legal elements for vari-ous transactions (sales, mortgages, leases, etc.) are discussed.

Even if the legal framework for land markets is satisfactory, however, and landmarkets are relatively efficient, other factors often intervene to limit positiveimpacts on the poor. The most prominent of these are distortions in credit mar-kets. Access to credit is commonly skewed against the poor, even those who haveland. Special efforts are needed to help the poor access land through markets.Chapter 4 discusses restrictions of marketability and scale intended to help thesmallholder, public education and legal aid, progressive land taxation, public landauctions, and land reform, including community-based—what the author calls“market-facilitated”—land reform. Rolfes discusses the importance to the poorof recent findings that land reform that provides small homestead and gardenplots to the poor can be remarkably effective in raising incomes.

Rolfes reminds us that the poor have an interest in the efficiency of land mar-kets because they are indeed efficient producers and efficient markets should

8 Land Law Reform

move land to them. An adequate legal framework for land markets—not just own-ership but leasehold markets as well—is part of the answer, but there is also needto recognize that credit market imperfections often prevent land markets fromserving the interests of the poor and reducing poverty. Markets can be madefriendlier to the poor, Rolfes indicates, but specific measures may be needed toassure positive impacts on the poor, and those impacts must be monitored carefully.

The importance of titling and registration of land rights that is noted in all thepreceding chapters and is the focus of chapter 5, David Bledsoe’s “Can LandTitling and Registration Reduce Poverty?” The Bank supports major land titlingand registration programs around the world; twenty projects now active involvesubstantial titling activity. Titling is critical in the creation of new property sys-tems in post-communist societies. It constitutes state recognition of the propertyrights of citizens. There has long been discussion of how titling may increaseinvestment and growth, for instance by improving access to credit through mort-gaging, and there is some empirical evidence to support this, but, as Bledsoepoints out, there is little empirical evidence that titling and registration canimprove the lot of the poor.

Bledsoe begins by reviewing the evidence on the impact of titling and regis-tration on economic growth, noting how heavily it leans upon a single thirty-year-old study from Thailand. He goes on to look at evidence regarding titling andpoverty alleviation, asking whether the poor benefit, whether they need titles, andwhether some programs tend to exclude them from titling or at least disadvantagethem, as in the case of sporadic titling. He urges the donor community to draw upcommon criteria and indicators for assessing the impact of titling and registrationprograms; include in any titling project assessment a poverty-targeting strategyand careful impact analysis; examine consistently any potential of projects toexclude women and others; and alter management and staffing of these projectsto be more inclusive of women and others susceptible to exclusion or negativeimpacts.

Equity and poverty alleviation have a large role in the MDGs, but conserva-tion and environmental protection have a high profile as well. Robert Mitchell inchapter 6, “Property Rights and Environmentally Sound Management of Farmland and Forests,” asks whether, in addition to meeting growth and povertyalleviation objectives, the legal framework for property rights can also affect con-servation. Much of the legal discourse about reforms to protect natural resourceshas been about regulation, but many developing country governments have weakgovernance systems and limited ability to enforce complex regulatory frame-works. Is it then necessary to rely on different mixes of incentive-creating prop-erty rights and regulations (backed by sanctions) in developing countries?

Introduction: Reforming Land Law to Achieve Development Goals 9

Mitchell first examines the legal framework for conservation: the role of indi-vidual property rights and the long-time horizons they provide to land users,increasing incentives for good husbandry; the relevance of group rights in prop-erty by communities and user groups (common property) in forests and other natural resources; and the regulatory tools available to governments, enhanced inrecent years by international agreements that create new obligations on the partof national governments to regulate and conserve.

Mitchell then turns to policies and legal tools governments can use to promoteconservation. For farmlands, these typically include strengthened property rights,policies affecting incentives to convert forests to farmland, zoning, and landreform, because placing land in the hands of smallholders with property rightsencourages both intensive land use and good husbandry.

Mitchell moves on to review the poor record of the State as a conservator offorests in the Third World and the legal needs of the alternative, which is com-munity resource management, such as group property rights, group definition,group legal personality, and delimitation of group territories. A cooperativeagreement between the forestry agency and the community is a key legal instru-ment, usually requiring agreement to a management plan as a condition of accessto and use of the resource.

Finally, chapter 6 looks at property rights in trees. Some legal systems that donot recognized private ownership of land do recognize ownership of trees. Indeed,planting trees under many customary land tenure systems can give rise to rightsin the land where they are planted. Instead of property rights being needed to pro-vide incentives for investment in land, as most economic models envisage, theprospect of gaining property rights is the incentive for the investment.

The key to natural resource management lies in finding a balance of incentivesgenerated by property rights and disincentives, created by sanctions, for defyingregulations. In countries with weak governance, at least, reliance on incentivesneeds to be maximized, making enforcement of regulations more manageable.

Chapter 7, the “Conclusion,” seeks to draw out from the needs identified in thefive papers basic implications for the coming generation of land law reforms.

11

C H A P T E R 2

Reform of Land Law in the Context of World Bank Lending

John W. Bruce*

2.1 Introduction

In the course of their work, World Bank staff members are often confronted bythe need for reform of laws relating to land. This may happen when they engagewith national development officials on policies and strategies or, in narrowerproject contexts, when inadequacies in land law threaten to undermine achieve-ment of project objectives and must therefore be addressed.

Issues of land law reform and implementation arise in the context both of con-ventional investment lending and of the development policy lending (includingthe new Poverty Reduction Support Credits [PRSCs]) that has in recent yearscome to represent a major proportion of Bank lending. This chapter exploressome of the salient substantive issues in land law reform but its primary purposeis to explain how the Bank and its staff work through these issues with clientcountries in the context of Bank programs and projects.1

The chapter first examines the role that land law plays in accomplishing thedevelopment objectives of the Bank. It then asks where Bank staff turn for guid-ance on land policy to inform land law reform decisions. In this context it notesnot only recent policy research publications relating to land but also operationalpolicies of the Bank that have implications for land law reform. It then examinescontractual approaches used by the Bank and its clients to agree on needed

* For this chapter the author has drawn upon his own project experience and reviewed doc-umentation from recent Bank projects for further instances of law reform. Mr. ZhongzhiGao, a legal intern from American University, Washington College of Law, providedinvaluable assistance in this review. The picture painted here should be fairly representa-tive but it is certainly not exhaustive, and some relevant examples may have escapednotice. The views expressed in this chapter are those of the author and do not necessarilyreflect the views of the World Bank.1 The World Bank has long recognized the importance of the assistance with law reformthat it provides to client countries, but the process has been documented only in generalterms. See World Bank, World Bank and Legal Technical Assistance: Initial Lessons vol. 1,Policy Research Working Paper No. WPS 1414 (Legal Department) (World Bank 1995).

12 Land Law Reform

reforms, and how these are used in both nonproject and project contexts. Landadministration projects funded by the Bank offer a substantial body of experiencefor this examination but natural resource management and other projects are con-sidered as well. Looking beyond particular projects, the chapter then considersissues of process and style in land law reform that confront project managers,their clients, and lawyers. Finally, it attempts to identify what is needed to makeBank assistance to its clients on land law reform more effective.

The relationship between land law and the Bank’s objectives of economicgrowth and poverty reduction are examined briefly as a prelude.

2.2 Land Law and the Bank’s Objectives

From a broad land law and policy perspective, key tasks facing the Bank’s clientcountries are strengthening private property rights; development and regulationof land markets; framing appropriate regimes for compulsory land acquisition forpublic purposes; reforming state land management; design of effective land useregulations; accommodating the legal diversity represented by customary, reli-gious, and national law; reforming land administration institutions; and expand-ing access of disadvantaged groups to land.2 While the Bank has concerned itselfwith all these areas in its many project contexts, its practice has prioritized theissues of robust property rights and their delivery to land users.

There is a well-developed body of legal and economic theory connecting prop-erty rights with economic growth. Strong property rights provide security oftenure, which in turn enhances incentives for investment. Property rights mini-mize externalities and allow landowners in market economies to pursue eco-nomic efficiency with fewer constraints. Rights to buy and sell land are the basisfor a market in land, which can place land in the hands of more efficient users,those who are able to pay more for the land. Rights to mortgage land can improveaccess to credit and the terms of market access to land.

Economists associated with the Bank have played an important role in empir-ically substantiating these propositions and thinking through their implicationsfor development policy.3 Though this discussion has become increasing nuanced,

2 Law and Sustainable Development Since Rio: Legal Trends in Agriculture and NaturalResource Management, FAO Legislative Study 73, particularly chapter 8, “Land,” 203,210 (FAO 2002). 3 Gershon Feder, Land Policies and Farm Productivity in Thailand (Johns Hopkins University Press 1988); and Gershon Feder & D. Feeny, Land Tenure and Property Rights:Theory and Implications for Development Policy, 5(1) World Bank Economic Review135–53 (1991). See also Frank F. K. Byamugisha, How Land Registration Affects Financial Development and Economic Growth in Thailand, World Bank Policy ResearchWorking Paper 2241 (World Bank 1999).

Reform of Land Law in the Context of World Bank Lending 13

it continues to reflect confidence in the fundamental importance of propertyrights and markets in them.4

There is broad consensus on these points, subject to important and obviouscaveats with regard to their predictive value in specific circumstances. For exam-ple, the ability to mortgage land will not provide access to credit in the absenceof lending institutions that can provide credit to landowners, and a market in landwill not move land to efficient producers where those producers are unable toaccess credit. Land law reform, if it is to have its desired impact, must besequenced in relation to, and coordinated with, other institutional, economic, andlegal reforms.

There is less consensus with regard to the impact on the poor of the creationof more robust property rights systems—even on the “landed poor,” the world’ssmallholders. Because many of the poor have weak land rights that are based oncustom or occupation and are not recognized by national law, this debate has inrecent years been couched in terms of “formality” and “informality.”5 The ques-tion then is whether the poor benefit from “formalizing” (recognizing by nationallaw) their “informal” land rights. On the one hand, as Hernando de Soto suggests,the granting to the poor of formal and well-documented property rights in landnot only confirms their rights but dramatically increases the value of the land andcreates new opportunities for them.6 On the other hand, it is less clear how wellthe poor and their land fare in land markets. Their poverty makes them subject todesperation sales, and the ability to market land is a two-edged sword. De Janvryet al., reviewing the literature, conclude that while land sales markets are gener-ally hostile to the poor, there are circumstances where land markets can workeffectively to give them access to land.7 The Bank’s 2003 PRR on land is not opti-mistic about sales markets as a means for the poor to access land and suggestsbroader use of rental markets for this purpose.8 No consensus on this seems likelyto emerge soon. There is a pressing need for further studies to more adequatelyidentify indicators that predict the impacts of land markets on the poor, in

4 Klaus Deininger, Land Policies for Growth and Poverty Reduction, World Bank PolicyResearch Report (World Bank & Oxford University Press 2003).The primary focus of thereport is on rural land policy.5 Characterization of customary land tenure as “informal” is common but misleading.Custom in fact represents an alternative formality, reflecting culturally embedded valuesand clear claims of right, managed by subnational social institutions with important inter-ests and often political influence. The situation is quite different from that of squatters.6 See Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the Westand Fails Everywhere Else 39–46 (Basic Books 2002).7 See Alain de Janvry, Gustavo Gordillo, Jean-Philippe Plateau & Elizabeth Sadoulet,Access to Land, Rural Poverty and Public Action 3 (Oxford University Press 2001).8 See Deininger, supra n. 4, at 84–98.

14 Land Law Reform

particular the poor who do have access to some land. These considerations shouldweigh heavily on those making land policy and designing land projects.

On the other hand, the case for strong property rights in land goes beyond themicro-impacts on households to creation of capital for development. As de Sotofamously argues in The Mystery of Capital, land in many developing countries is“dead capital,” capital that can only be made alive by legal reforms. In a developedeconomy, he writes, the rights in each piece of land are represented by a document,and through that document

assets can live an invisible, parallel life alongside their material existence.They can be used as collateral for credit. . . . These assets can also provide alink to the owner’s credit history, an accountable address for the collectionof debts and taxes, the basis for the creation of reliable and universal publicutilities, and a foundation for the creation of securities (like mortgage-backed bonds) that can then be rediscounted and sold in secondary markets.9

That may be the long-term future of land law in developing countries but in theshort term careful attention to the phasing and sequencing of reforms is needed.There is need for direct attention to impacts on the poor. Vested interests, those ofboth property owners and land administration bureaucracies, demand accommo-dation. The legal task is not just stating where one wants to go (the legal objective)but how one gets there from where one is (the legal status quo). Because existingland tenure and institutions are so historically particularistic, varying greatly fromcountry to country and even within countries, the task of planning this transfor-mation, which is the task of land law reform, will never be simple or standardized.Because there will be winners and losers in the process, it will always be political.

Good policy makes for good law reform. The next sections of this chaptertherefore consider the policy guidance available to Bank staff working on reformof the law relating to land.

2.3 General Guidance on Land Policy and Law Reform

Land policy and the law concerning land were not the subject of significant dis-cussion at the Bretton Woods meetings that constituted the Bank; nor are theyreferred to in the Bank’s Articles of Agreement (Bank’s Articles). The Bank doesnot have an authoritative policy either on land or on property rights in land. Thismay in part be because the Bank is an international organization, part of theUnited Nations system, and land law and property rights were ideologically con-tested territory during the Cold War, the formative years of the Bank. Theyremain so, though to a lesser degree.

9 See de Soto, supra n. 6, at 6.

Reform of Land Law in the Context of World Bank Lending 15

International agreements and treaties often provide the basis for the Bank towork with its members on policy and law reform. This can be seen clearly in thecase of environmental policy and law.10 Many Bank clients are parties to theseagreements; in the environmental area, international agreements have beenaccepted broadly enough to allow an argument that they are changing customaryinternational law.

But property rights in land are, under international law, largely the business ofthe national state. A State has the right to establish its own property system so longas it is not repugnant to international law. While the Universal Declaration ofHuman Rights11 states in Article 17 that “Everyone has the right to own propertyalone as well as in association with others” and that such right “shall not be arbi-trarily deprived,”12 international law does not dictate the content of property rightsand the objects to which they apply. There is today no universally accepted stan-dard for appropriate compensation for “takings” of land. This is a critical issue,since viability of property rights hinges heavily on the compensation that must bepaid when the State expropriates them. Recognition of property rights without aguarantee of adequate compensation for taking has little meaning. Seidl-Hohenveldern et al., chronicle the decline in the United Nations, after 1946, of aninternationally protected right to compensation for the taking of property. Morerecently, however, due in part to the role played by the European Convention onHuman Rights and Fundamental Freedoms,13 some ground has been regained.14

10 David Freestone, Incorporating Sustainable Development Concerns into the Develop-ment and Investment Process—The World Bank Experience in Exploitation of NaturalResources in the 21st Century 91 (M. Fitzmaurice & M. Szuniewicz, eds., Kluwer LawInternational 2003).11 Adopted and proclaimed by General Assembly Resolution 217 A (III) of December 10,1948, U.N. Doc A/810 at 71 (1948).12 While art. 17(2) of the Universal Declaration of Human Rights of 1948 provides a guar-antee against arbitrary deprivations of property, the section of the Secretariat draft thatwould have required just compensation did not appear in the final version. When therights proclaimed in the Declaration were rendered operational in the InternationalCovenants on Human Rights, all other rights were dealt with in these covenants except theguarantee against arbitrary deprivation of property. See Ignaz Seidl-Hohenveldern,International Economic Law 128 (3d rev. ed., Kluwer Law International 1999).13 See 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by ProtocolsNos. 3, 5, 8, and 11, which entered into force on September 21, 1970, December 20, 1971,January 1, 1990, and November 1, 1998, respectively.14 See Seidl-Hohenveldern, supra n. 12, at 126–28; Oppenheim’s International Law vol. I:Peace, 921–26 (Robert Jennings & Arthur Watts eds., 9th ed., Longman 1992); andRudolf Dolzer, Expropriation and Nationalization, in Encyclopedia of Public Interna-tional Law, vol. II, 319–26 (Rudolf Bernhardt, ed., 1992). Seidl-Hohenveldern, writingmost recently (1999), sees the work of the European Convention on Human Rights as rep-resenting a revitalization of the classic criteria for fair compensation (see id., at 128).

16 Land Law Reform

The trend toward greater recognition of the critical role of property rights inland is reflected in a variety of recent declarations by international developmentagencies. Documents from the United Nations Conference on Environment andDevelopment (UNCED) held in Rio, in particular Agenda 21, contain many ref-erences to land and property rights. Because indigenous peoples have been dis-advantaged even in countries that offer private property rights in land, there arenow a number of conventions that contain strong guarantees of their propertyrights in land. The International Labour Organization’s (ILO) ConventionNo. C169, the Convention Concerning Indigenous and Tribal Peoples in Inde-pendent Countries, adopted in 1989 and ratified primarily by Latin Americancountries, requires recognition of the ownership rights of indigenous peoplesover land traditionally occupied and calls on governments to take the necessarysteps to identify and protect those rights.15 Recent jurisprudence under the Inter-national Covenant on Civil and Political Rights (ICCPR)16 interprets its provi-sion on the right of indigenous people to enjoy their culture to include rights toland.17 Similar trends are evident in the jurisprudence of the Inter-AmericanCourt of Human Rights in construing the American Convention on HumanRights.18

It must still be admitted that the development of clear and binding interna-tional norms in the area of property rights in land lags well behind that for envi-ronmental law. In the absence of such standards, where do Bank staff turn for pol-icy prescriptions? They generally argue from first principles, such as the Bank’smandates to promote economic growth and fight poverty, mediated by economicunderstandings concerning land rights. Bank economists working with landissues have written important pieces on land policy;19 these are distinguishedfrom much other economic writing in the field by their sense of history. Therehas, however, been little authoritative guidance for staff.

15 Article 14(2) of the Convention Concerning Indigenous and Tribal Peoples in Inde-pendent Countries, (ILO No. 169), 72 ILO Official Bull. 59, entered into force Septem-ber 5, 1991.16 United Nations General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Supp.(No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23,1976. 17 See id., art. 27.18 See supra n. 2, at 209. See also, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, enteredinto force July 18, 1978. 19 In particular see Klaus Deininger & Hans Binswanger, The Evolution of the WorldBank’s Land Policy in de Janvry et al., supra n. 7, at 407, which discusses the economicbases for Bank practice; in referring to the Bank’s “land policy” in inverted commas itsuggests that while this has not been officially declared, for instance in an OperationalPolicy, its outlines can be seen in numerous Bank documents and in Bank practice.

Reform of Land Law in the Context of World Bank Lending 17

Recently, this position improved substantially with publication of a policyresearch report on “Land Policies for Growth and Poverty Reduction.”20 A PRRis not simply a statement of research findings; it also contains policy prescrip-tions discussed at the highest levels of the Bank. This report involved consider-able consultation with both those outside the Bank and with the Bank’s Land Policy and Administration Thematic Group,21 composed largely of those whowork on Bank land projects. These prescriptions are not binding on operationalstaff, but the Bank seeks to make the findings known among staff and clients, andthe recommendations are influential.22 Most Bank staff pursue objectives in landpolicy and land law reform roughly consistent with these principles.

In addition to these policy prescriptions, there is some guidance on specificissues that is binding on Bank staff. This is discussed in the following section onlegal guidance.

2.4 Legal Guidance: The Operational Policies

The policies that bind Bank staff are Operational Policies (OPs) and Bank Procedure Notes (BPs). These are operational rules rather than general policystatements. The recently revised OP on Forestry (OP 4.36, November 2002), forexample, does not attempt to say what are good or bad policies concerningforestry generally, except for brief recognition of consensus objectives, such asconservation and sustainable use. It instead says what the Bank does and does notdo and how it does it. It specifies, for example, the circumstances under whichthe Bank will fund commercial logging. The trend in the drafting of these OPs istoward ever-greater operational specificity and away from broad statements ofaspirations.

The Bank does not have an OP on land. Such a policy would be difficult toframe, given the diversity of national land situations and the substantial politicaland cultural content of land policy and law. There are, however, a few key policystatements regarding land in three OPs. These OPs constitute binding rules,though the texts must be carefully examined to answer the question, “Binding inwhat contexts?” They deal with land in the contexts of: (a) expropriation disputes

20 See Deininger, supra n. 4. 21 The Land Policy and Administration Thematic Group (TG) is a voluntary group of Bankstaff working on land projects and policy. Attached to the Agricultural and Rural Devel-opment Department in the Bank, it is the primary vehicle for continuity in thinking onland issues in the Bank. Information and documentation from the TG can be accessed athttp://www.worldbank.org/landpolicy.22 This seems to have been the fate of a 1975 sector policy report on land reform, ofwhich few in the Bank are still aware—it appears to have fallen into what lawyers call“desuetude.” See World Bank, Land Reform: Sector Paper (World Bank 1975).

18 Land Law Reform

among Bank members;23 (b) involuntary resettlement;24 and (c) dealings withindigenous peoples.25 The latter two are designated as “safeguard policies,”which are intended to avoid or mitigate possible negative impacts of Bank proj-ects on those affected. The three policies are discussed here in turn.

The Bank’s OP 7.40 (July 2001) on Disputes over Defaults on ExternalDebt, Expropriation, and Breach of Contract, in paragraphs 5–8 dealing withdisputes over expropriation, states a Bank policy on expropriation of land andother properties. Paragraph 5 provides that “The Bank recognizes that a mem-ber country may expropriate property of aliens in accordance with applicablelegal procedures, in pursuance in good faith of a public purpose, without dis-crimination on the basis of nationality, and against payment of appropriatecompensation.” Paragraph 7 specifies that “The Bank does not lend for thepurpose of enabling a country to expropriate an enterprise by providing thefunds needed for compensation. However, if the question of compensation issatisfactorily settled, the fact of expropriation does not, of itself, prevent theBank from lending, in appropriate cases, to enlarge or improve properties thathave been expropriated.”

The Bank’s OP on Involuntary Resettlement (OP 4.12, December 2001,revised April 2004) seeks to avoid or mitigate loss by affected populations ofassets, including land assets, due to activities funded by Bank projects. Thepolicy was framed initially to cover physical displacement by infrastructureprojects but has broader application. Involuntary resettlement is the problem-atic action, and loss of land a form of damage, that should be considered inframing a compensation package. Today, the OP provides protection for thosewho lose access to assets but are not actually displaced in the sense of beingmoved to a new location. Its protections (framed in terms of a taking of land)apply to those occupying the land without legal right under national law(“informal occupants,” squatters, or holders under custom unrecognized bynational law).

OP 4.12 states, in paragraph 3, that the policy covers “direct economic andsocial impacts that both result from Bank-assisted investment projects, and arecaused by (a) the involuntary taking of land.” Paragraph 6(a)(iii) requires a reset-tlement policy framework or plan that calls for “prompt and effective compensa-tion at full replacement cost for losses of assets attributable directly to the proj-ect.” The preference in the case of land assets, stated in paragraph 11, is forprovision of replacement land “for which a combination of productive potential,

23 OP 7.40, Disputes over Defaults on External Debt, Expropriation, and Breach of Contract (July 2001).24 OP 4.12, Involuntary Resettlement (April 2004).25 OP 4.10, Indigenous Peoples (May 2005).

Reform of Land Law in the Context of World Bank Lending 19

locational advantage, and other factors is at least equivalent to the advantages ofthe land taken.”26

Similarly, the Bank’s OP 4.10 on Indigenous People (May 2005)27 seeks toensure that indigenous peoples reap full benefits from Bank projects and are notinadvertently disadvantaged by them. The OP recognizes that “the identities andcultures of Indigenous Peoples are inextricably linked to the lands on which theylive and the natural resources on which they depend.”28 It defines indigenous peo-ples in part by reference to their “collective attachment to geographically distincthabitats or ancestral territories . . . and to the natural resources in those habitatsand territories.”29 In carrying out the Social Assessment and preparing the Indige-nous Peoples Plan or Planning Framework, particular attention must be paid to“the customary rights of indigenous peoples, both individual and collective.”30

Paragraph 17 further provides:

17. If the project involves: (a) activities that are contingent on establishinglegally recognized rights to lands and territories that Indigenous Peoples tra-ditionally owned, or customarily used or occupied (such as land titling proj-ects); or (b) the acquisition of such lands, the IPP sets forth an action planfor the legal recognition of such ownership, occupation, or usage. Normally,the action plan is undertaken prior to project implementation; in some cases,however, the action plan may need to be carried out concurrently with theproject itself. Such legal recognition may take the form of:

(a) full legal recognition of existing customary land tenure systems ofIndigenous Peoples; or

(b) conversion of customary usage rights to communal and/or individualownership rights.

If neither option is possible under domestic law, the IPP includes measures forlegal recognition of perpetual or long-term, renewable custodial or use rights.

These operational policies on involuntary resettlement and indigenous peoplescan raise issues of land law reform during the design of Bank investment projects,

26 The standards of compensation required here are reminiscent of those required by inter-national law when the property of citizens of one nation is compulsorily acquired by thegovernment of another nation. The classical formulation requires prompt compensation atmarket or replacement value, but recent practice has diverged from this, see Dolzer, supran. 14, at 323–24, and Oppenheim, supra n. 14, at 926. International law does not hold governments to this standard for their own citizens.27 A revision of the previous Operational Directive (OD) on Indigenous Peoples, underdiscussion since 1999, was approved in 2005 as OP 4.10.28 See id., paragraph 2.29 See id., paragraph 4(b).30 See id., paragraph 16(a).

20 Land Law Reform

but even when the Bank is not supporting legal reform, the good example pro-vided by the requirements of the OPs can be contagious. Compensation paid inone government project to displaced landholders can raise questions in the mindsof those affected by other government projects as to whether they in fairnessdeserve the same treatment. The experience with the Involuntary ResettlementOP in Lesotho illustrates this: The standards for compensation for land under theBank-funded Lesotho Highlands Water Project 1A 1991 (P001396) and 1B 1998(P001409), which was provided for in a project-specific regulation,31 raisedexpectations and generated demands that this become the national standard forcompensation in cases of resettlement.32

A new OP may increase efforts to reconcile national law and standards inBank safeguard policies. In 2005 the Bank approved an OP on Piloting theUse of Borrower Systems to Address Environmental and Social SafeguardIssues in Bank-Supported Projects (OP 4.00). Client countries whose nationallaws meet the objectives of those safeguard policies can be certified as suchand will then need to worry only about their own laws in implementing Bank-funded projects.

How, then, does the Bank engage client countries in reform of the law relatingto land? This can be done in an investment project context, in policy-based lend-ing contexts, and in policy development contexts outside lending programs.These are examined in the following sections.

2.5 Policy and Law Reform Outside the Project Context

The Bank has struggled over the years to find the right “door” through which toenter into dialogue with client countries on topics as sensitive as land policyreform. Deininger and Binswanger give some sense of the evolution in thinkingon this matter:

[T]he Bank discovered that the past approach of initiating narrow inter-ventions in individual areas (such as titling) to establish the basis for abroader policy dialogue did not reach this objective. It was gradually

31 Lesotho Highlands Water Project Compensation (Amendment) Regulations, 1992.32 Kingdom of Lesotho, Report of the Land Policy Review Commission (GovernmentPrinter 2000). The report states, at page 43: “The issue of compensation for lost land hasbecome a problem because there are no standard compensation rates to be followed. Forinstance the Lesotho Highlands Development Authority (LHDA) uses different compen-sation rates as compared to those used by Lesotho Housing and Land Development Corporation (LHDC). In recent times people have indicated that they want LHDA com-pensation rates to be used as they are relatively higher than the others. In some cases people who were given compensation some years back have come back claiming morecompensation as soon as they discover that LHDA is paying more compensation.”

Reform of Land Law in the Context of World Bank Lending 21

replaced by a strategy that aims to base land market interventions on abroad and encompassing policy dialogue and consensus in the clientcountry. In countries where land issues have in the past been the causeof wars, revolutions, and civil strife, reaching such a consensus requirestime and a sustained dialogue on key policy issues between government,Non-governmental Organizations (NGOs), and civil society at large. Initiating such a process, ensuring its integration into a broader frame-work of rural development interventions, and strengthening the capacityof key players has become a critical component of the Bank’s ‘land policy.’33

It is in this context that the Bank and client governments have begun toaddress land law and policy issues as part of a systematic policy reform process.In this process, the Bank develops its lending program in countries by preparing Country Assistance Strategies (CAS) and Poverty Reduction Strategy Papers(PRSPs) with the client governments. These planning documents often identifycertain areas of national land policy and law as requiring reform. The Bankassists clients in pursuing these reforms in a variety of project and program con-texts, especially in connection with “policy lending.” Policy lending, which isnonproject lending, includes both traditional Structural Adjustment Loans(SALs) and the new PRSCs. Because these loans have as their primary purposechanges in policy, they are an important vehicle for Bank support of policy andlaw reform.

Land law reform in both project and policy-lending situations will be dis-cussed below, but to facilitate understanding of how this process works in Bank-funded efforts, it is important to introduce briefly the contractual tools availableto the Bank and its clients in reaching agreement on law reforms.

2.6 Covenants and Conditions as Contractual Tools

The Bank and its clients use Bank funds to support important policy and legalreforms. Though the Bank cannot compel legal change by sovereign states, itdoes create incentives for governments to change laws: Funding for a project orpart of a project may be conditioned on certain legal reforms. The ministry orother government agency that receives the funds often champions the legalreforms, though other government agencies and civil society may also supportthem.

33 See Deininger and Binswanger, supra n. 19, at 406–40 (in particular 407).

22 Land Law Reform

In such cases, the Bank will usually require a change not just in policy but alsoin law, because policies bind only the government of the day, and only for so longas that government says that it is policy. Indeed in some national contexts, it isdifficult to know what is necessary to authoritatively enunciate or change a gov-ernment policy. There may be no tradition of governments making authoritativepolicy declarations, nor any standardized formalities for doing so. Bank stafffamiliar with the British/European Union model of a “green paper” for a draftpolicy and a “white paper” for a final authoritative policy statement will find thatthis is unknown in many countries. In one African client country recently, anattempt by consultants to press for a “white paper” was greeted with the senti-ment that there was perhaps something racist about the notion. It may be that, ifit is to become regular practice, the notion of a “policy declaration” requires someelement of democracy in the political culture, with a citizenry that can demand toknow what the government is going to do. Why else should the government tie itshands?

Changes in the law are a different matter. These are legally binding not onlyon the current government but also on the next government, unless they arerepealed. They are far more reliable as indicators of success in the policyreform process than policy reform statements themselves, which can proveephemeral.

In the Bank’s lending instruments, the Bank and its clients can record theirmutual commitments to legal reform in two ways, conditions or covenants.A condition is simply a future event that, if it does not happen as required, hasconsequences. It is a requirement that must be met before something happens,often before the loan is made. There may be, for instance, a condition ofappraisal, a condition of negotiations, or a condition of disbursement. Some-times legal reforms are called for as conditions: If the law reform is not accom-plished, something specific will not happen. The consequence may be, for example, that the effective date of the loan is delayed, or that disbursement willnot begin. Failure to meet the condition is not a breach, however, and does nottrigger the responses triggered by a breach. Because a covenant, on the otherhand, is a commitment undertaken by a party, failure to meet the commitment isa breach that may trigger a number of possible responses by the Bank, includingsuspension of the loan.

The Bank discourages the use of covenants to require law reforms because todo so would require the client government to commit its legislative branch toenact a law. In many countries this is not constitutional; nor is it generally desir-able. Paragraph 14 of OP 7.00 on Lending Operations: Choice of Borrower andContractual Arrangements (February 2001) states that rather than usingcovenants, where a change in law is necessary to achieve the objectives of theproject, the change should be made the subject of a condition of negotiation,

Reform of Land Law in the Context of World Bank Lending 23

Board presentation, effectiveness, or disbursement.34 In both policy lending andinvestment lending, Bank managers and clients have recourse to conditions in theloan agreement or other agreements (e.g., letters of development policy, agreedminutes of negotiations). Nevertheless, covenants, in particular dated covenants(a particular reform by a specified date), are35 sometimes included in loan agree-ments; there are references to several in this chapter.

In recent years Bank management has urged restraint in the use of conditionsand covenants. Conditionality, it is appreciated, is no substitute for governmentownership of reforms. Based on recognition of the importance of such ownership,the Bank has since the late 1990s sought to reduce the number of conditions inits programs. There has thus been a decline in conditionality, most strongly forpolicy and law reform conditions and to a lesser extent for conditions related tofinancial management.

2.7 Reform in the Context of Development Policy Lending

Casual observers of the Bank may think of its work in terms of investment proj-ects, such as those that fund roads and dams, and even social and economic infra-structures, such as schools and government offices. In fact an ever-larger part ofBank lending, more than a fourth of new commitments in the most recent fiscalyear, falls outside traditional investment projects and into the realm of

34 The Bank’s OP 7.00 on Lending Operations: Choice of Borrower and ContractualArrangements (February 2001) provides in paragraph 14 that:

The Bank does not stipulate covenants that require the member to enact legislation,and tries to work within existing law to the extent possible [footnote omitted]. Ifenactment of particular legislation is necessary to achieve the project’s objectives,the appropriate steps to be taken for such enactment should be clearly defined; andsuch enactment is made a condition of negotiation, Board presentation, effective-ness, or disbursement, rather than a covenant.

Footnote 14 to paragraph 14 goes on to explain that:

Development policy loans require often [sic] entail significant changes in existinglaws, regulations, and administrative practices. The legislative steps to be under-taken are normally described in the Letter of Development Policy (see para.16), butmay also be part of the specific actions incorporated in the Loan Agreement as con-ditions of Board presentation or conditions of disbursement of particular loantranches, rather than as covenants.

35 Zhanar Abdildina & Jaime Jaramillo-Vallejo, Streamlining Conditionality in WorldBank—and International Monetary Fund—Supported Programs, in Conditionality Revis-ited, Concepts, Experiences, and Lessons 85–91 (Stefan Koeberle, Harold Bedoya, PeterSilarszky & Gero Verheyen, eds., World Bank 2005). Unfortunately, no figures are avail-able for earlier and more recent levels of conditionality in land projects.

24 Land Law Reform

“development policy lending.” This includes both the older SALs and new vehi-cles like PRSCs.36

The framework for this is set out in OP 8.60 on Development Policy Lending(2004). The purpose of such lending is “to help a borrower achieve sustainablereductions in poverty through a program of policy and institutional actions thatpromote growth and enhance the well-being and increase the income of poor peo-ple.”37 Such lending aims, inter alia, “to promote competitive market structures(for example, [through] legal and regulatory reform).”38 Because policy changeand support of its implementation are the raison d’être for development policylending, conditions often involve legal reforms. “The legislative steps to beundertaken are normally described in the Letter of Development Policy (seepara. 16) but may also be part of the specific actions incorporated in the LoanAgreement as conditions of Board presentation or conditions of disbursement ofparticular loan tranches, rather than as covenants.”39 The Letter of Developmentis written by a client government official to the World Bank as part of the lead-up to the loan, for instance a PRSC. Progress in achieving reforms will later bereviewed in the Program Document for the PRSC. As countries usually have asuccession of PRSCs, this process repeats itself: a statement of intention followedby an assessment of progress in the program document, followed by a further pol-icy letter, and so on.

For example, the Bank is currently working with the Government of Vietnamon land policy and legal development, which are dealt with under the VietnamSecond Poverty Reduction Support Credit, 2003 (P075398). The Letter of Devel-opment Policy (LDP)40 for the credit provides, in paragraph 54, that the program

36 FY 2005 new commitments consisted of US$16,215.44 million for investment projectsand US$6,604.68 for development policy projects. See http://web/worldbank.org/ external/projects/main?page.37 OP 8.60, Development Policy Lending (August 2004), para. 2. The decision to proceedto development policy lending with a client country is made in the context of the Coun-try Assistance Strategy (CAS) preparation; factors considered include the overall sound-ness of the macroeconomic framework, the strength of the policy development program,the strength of the government’s commitment to the program, the ability of the govern-ment to implement the program, and the country’s track record on policy reform. TheBank consults on such programs through CAS discussions and through discussions ofother country strategies, such as the Poverty Reduction Strategy Paper (PRSP) in Inter-national Development Association (IDA) countries and the country overall and sectoraldevelopment policies in IBRD countries (OP 8.60, paras. 3 and 6).38 World Bank, World Bank Lending Instruments; Resources for Development (WorldBank 2003).39 See supra n. 34.40 Letter of Development Policy (May 30, 2003), from the Governor of the Bank of Vietnam to the President of the World Bank, available at http://www.worldbank.org.

Reform of Land Law in the Context of World Bank Lending 25

will support issuance of land tenure certificates, noting that land-use rights thatcan be traded and mortgaged provide several benefits, especially for the poor. TheDevelopment Credit Agreement (DCA) for the project, in schedule 2, notesprogress made to date: issuance of land-use right certificates to (i) about 35 per-cent of users of urban residential land; and (ii) in forest areas, about 60 percentof households and individual land users who have received or rented forest landdirectly from the State. The Letter goes on to state, in paragraph 80, that underfuture PRSCs:

[T]he National Assembly is expected to adopt a new, substantiallyrevised Land Law, which will provide greater land-tenure security andequal access to land by all sectors, that is correspondent with the cus-toms and habits of the communities that are using the land legally. Reg-istration and other civil transactions relating to land use rights will besimplified. Especially, land use rights and project bidding methods willbe applied widely for the cases when credit organizations fail to collecttheir debts. Issuance of Land Tenure Certificates will be continued underPRSCs.

In Rwanda, the Bank is again working for legal reform relating to land. This isdealt with in the Rwanda Institutional Reform Credit Project (Structural Adjust-ment), 2003 (P066385). In this case, the medium-term (through 2005) policy andinstitutional objectives as set out in the Program Document called for improvingproductivity of rural assets while recapitalizing these assets and aimed for “a landpolicy and land law that provides security of tenure, gives women land inheri-tance and ownership rights, and provides overall land use.”41 Immediate bench-marks were adoption of a land policy by October 2002 and submission of a landlaw to the National Assembly by 2003.42

The experience under two successive Uganda Poverty Reduction SupportCredits (1 and 2) (P050438 (2001) and P073671 (2002)) provides insight intosome of the opportunities and limitations of Bank assistance using the PRSCmechanism. The Bank, through loans for the Agricultural Secretariat in the Bankof Uganda, played an important role in the development of post-Amin land pol-icy, largely through funding for a research and policy development exerciseinvolving the Makerere Institute of Social Research at Makerere University andthe Land Tenure Center of the University of Wisconsin–Madison. The processculminated in the detailed provisions on land in the 1995 Constitution and the

41 Program Document, Rwanda Institutional Reform Credit Program (Structural Adjust-ment), 2003 (P066385), annex A.42 See id.

26 Land Law Reform

constitutionally mandated Land Act of 1998.43 The UK’s Department for Inter-national Development (DFID) carried the burden of technical assistance forpreparation of the Act and later for public education and amendment of the Actto scale down a too ambitious and ultimately unaffordable administrative frame-work for its implementation.44

The Land Act and its implementation figured prominently in the UgandaPRSC discussion, which initially targeted amendment of the Land Act, approvalof a Land Sector Strategic Plan, and implementation of the Land Act. In particu-lar, amendment of the Act was required to address women’s limited rights in landand the fact that the original Act had prescribed a staffing pattern for decentral-ized land administration that the country could not afford. The Act was amendedand the Strategic Plan adopted as envisaged, but implementation has been verylimited. For a third PRSC, 2003 (P074081), implementation objectives werestated more specifically and narrowly, focusing on actual staffing and decentral-ized financial arrangements, and on completion of pilot work. A new law onmortgages was encouraged.45

The slow progress is largely the result of inadequacy of the resources forimplementation committed by the Government of Uganda. This reflects the polit-ical weakness of the Ministry of Water, Lands and Environment. Policy loans,while they state targets for law and policy reform or their implementation, do notdirectly support those processes. The funding provided is in the nature of generalbudgetary support; in Uganda, this has not strengthened the capacity of that Ministry.

In Tanzania, the 2003 PRSC (P074072) and Grant46 identified a number ofinadequacies in the Land Acts, particularly related to collateralization, foreclo-sure, consent by spouse, customary and small mortgages, default notice, andthird-party mortgages. Under this initial PRSC, the Ministry of Lands prepared aposition paper on changes that may be needed in the laws. Drafting of amend-ments to the Land Act and their delivery to parliament for approval were made

43 Patrick McAuslan recounts the making of the 1998 Land Act from his perspective asone involved in the drafting, in “As Good as It Gets: Politics and Markets in the Makingof Uganda’s Land Act, 1998,” in Patrick McAuslan, Bringing the Law Back In: Essays inLand, Law and Development 275–309 (Ashgate Publishing Ltd. 2003).44 McAuslan gives his personal view of the history of the DFID’s Securing SustainableLivelihoods Through Land Reform Project in “Men Behaving Badly: A Narrative of LandReform,” see id., at 310–52. 45 The Letter of Development Policy from the Minister of Finance, Planning and Devel-opment to the President of the World Bank, July 23, 2003, noted progress made to dateand focused on financial planning for decentralized land administration and on passageof a Mortgage Decree.46 Program Document, Tanzania PRSC 2003, at 33.

Reform of Land Law in the Context of World Bank Lending 27

trigger conditions for the 2004 PRSC (P074073). The LDP for this SecondPRSC47 noted that the act was amended in February 2004, clearing the way forindividuals and firms to use their land as collateral. For a proposed Third PRSC,the Bank and the Government are discussing preparation and approval by theGovernment of regulations for implementing the amended Land Act.

Policy lending, while a powerful tool for law reform because governmentsdesire these effectively untied funds, may be less effective in ensuring a good leg-islative result or implementation of new law. First, in contrast to land investmentprojects, project preparation sometimes does not mobilize effectively expertise onland law and policy, within and outside the Bank, at the time the conditionality isdesigned. Second, it does not allow focused application of loan funds to supportparticular activities; the assistance consists of broad budgetary support to theclient government. Third, the policy loan may not adequately provide for effectivetechnical assistance to the client government in meeting its policy and law reformobligations. (This may be mitigated where there is also an investment project inplace to support these activities, or such support is available from another donor.)

Let us turn now to experiences with investment projects where Bank loanfunds support specific activities that include land policy and law reform.

2.8 Reform in the Investment Project Context

During preparation of any investment project, the Task Team should (and usuallywill) ask, in light of the objectives of the project, whether there is an adequatelegal framework for the planned activities. If the project concerns or relies uponsignificant mobilization of land as a resource, for instance in an infrastructure oragricultural project, then the adequacy of the law relating to land must be inves-tigated. How rights are defined and distributed can affect how intended benefici-aries respond to the opportunities offered by a project. Land rights also play animportant role in determining who benefits from projects; an inadequate legalframework can create serious risk of failure to attain such project objectives aspoverty alleviation.

It may be that if fundamental legal reforms are needed to achieve the objec-tives of an investment project, it is better not to proceed to negotiation of the loan;the time may not be ripe for the project. It might be possible to condition Boardpresentation or loan effectiveness on legal reforms, but passing laws take time,which could entail extended periods of uncertainty. If the project team is confi-dent that a needed reform will be forthcoming shortly, they may recommend con-ditioning disbursement of funds on the legal reform.

47 Letter of Development Policy from the Minister of Finance of Tanzania to the Presidentof the World Bank, June 30, 2004.

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In most cases, the flaw in the legal framework affects some subset of activ-ities under the project, so the condition on disbursement may be only for theaffected component. Recognizing the need for government to respect the leg-islative branch’s prerogatives, the condition usually takes the form of a com-mitment by government to prepare and submit legislation to the legislativebranch by a particular date rather than a commitment to enact the legislation.Where all that is needed is a change in regulations that need not go to the leg-islature but can be accomplished by the executive, the condition may requirethe change.

The most common investment project contexts for engagement with clientgovernments on reforms of the law relating to land are, not surprisingly, “landprojects.” These fall into three major categories:

1. The numerous land administration projects, which generally seek to buildthe capacity of government to administer property systems, assist in imple-mentation of land privatization, and support the survey and titling of land-holdings.

2. Land reform projects, through which the Bank seeks to improve access ofthe poor to land and to increase efficiency by downscaling to more man-ageable operating units, often family-operated units.

3. Natural resource management projects, in which land law issues often arise,especially common property issues.

In the sections that follow, the issues raised in each project type are explored anda few projects in each category are examined in detail.

2.9 Land Administration Projects

Land administration projects account for the majority of “land lending” by theBank. Because they have produced a rich body of experience, they are discussedat some length here.

The Bank helps client governments to provide their citizens with greater secu-rity of tenure and more open land markets. It loans exclusively to governments,for which land administration—the provision of a legal framework and the pub-lic infrastructure for private markets in land rights—is an appropriate task. Themain thrust of Bank funding in this area has been to support the provision anddocumentation of land rights. In some contexts, like Eastern Europe and the for-mer Soviet Union, this involves titling, the conferring upon landholders by theState of a right to land. In others, property rights exist but have not been effec-tively documented. In these circumstances, the Bank has often supported regis-tration of those rights.

Reform of Land Law in the Context of World Bank Lending 29

In both contexts, the Bank has often used a system of recording land rightsknown as systematic title registration.48 Systematic title registration is basedupon a careful mapping of parcels that creates a registry organized by parcel;each parcel is shown on a large map with its unique number, with a register ofland rights for that parcel identified by the same unique number. The basis forregistration is a field operation for demarcation and survey of boundaries andadjudication of rights. That process moves from parcel to parcel in a locale offi-cially declared an “adjudication area,” gathering the needed information andinformally mediating or adjudicating disputes, subject to appeal to the courts.The systematic process is in some cases compulsory, in others voluntary; butbecause people are generally anxious to have their rights registered and onlynominal fees are charged, normally almost all parcels in an area can be adjudi-cated in a single field operation. This systematic approach works well for regis-tration of existing rights and is also very effective where the client governmentwants to grant new land rights: to “title” as well as register land.

Because the process is painstaking, participatory, and very reliable, its regis-tration of a title can be given extraordinary legal effect: it is often provided thatthe title cannot be affected by any right not shown on the register or that it is“indefeasible.” Often it is said that the State guarantees the title shown on such aregister, which is literally true in some but not all national systems. The certaintycreated allows anyone contemplating a transaction to rely confidently on the reg-ister to show who is the legal owner of the land.49

Bank projects generally prefer to support systematic (“mass”) registration oftitles rather than registration in response to the request of individuals (“sporadicregistration”). Great efficiencies stem from avoidance of repeated trips to thefield by surveyors and other staff involved in the process. The systematic

48 See Deininger, supra n. 4, at 71. This system of registering title is called “Torrens Title”after its inventor, Sir Robert Torrens, the first Premier of the State of South Australia. Thissystem of titling is now used in many parts of the world, having been transferred duringthe colonial period by the British and French and more recently through the efforts ofdonor agencies. It makes registration of a title conclusive of right to the property. Thismeans that any person checking the title register can be sure that the party who is shownon the register as the owner is indeed legally the owner. 49 Deeds registration, an older system, allows right-holders to record the document onwhich their rights are based (their deeds) in a register. The entry is made only at the ini-tiative of the owner of the land. This is called “sporadic” registration to distinguish it from“systematic registration.” Not all parcels or transactions get on the register, and registra-tion does not confirm the title, so it is a much less reliable source of information on own-ership. The entries are usually chronological and connected only to a map of the parcelitself that is appended to the deed. Key publications on systems of titling include the clas-sic S. Rowton Simpson, Land Law and Registration (Cambridge University Press 1976)and, more recent and more technical, Peter F. Dale & John D. McLaughlin, Land Admin-istration (Oxford University Press 1999).

30 Land Law Reform

approach is especially useful in major transitions, as when: (1) customary orinformal rights are to be formalized; (2) state or collective land is being brokenup into smaller holdings and privatized; or (3) it is simply desired to bring all landin an area onto a single efficient rights database.

Where the project is not just registering an existing right but conferring anddocumenting that right, it is engaged in “titling” rather than just registration. Systematic titling and registration, as practiced in Bank projects, is generallyhighly participatory and, because of the scale of operations, efficient. It is alsofairer. Because everyone’s land is registered at the same time, in a highly publicvenue with broad community involvement, the likelihood that boundaries ofproperties will be demarcated correctly is greater, and the chances are minimizedthat someone might, by fraud, get his neighbor’s land registered in his name.

Systematic registration and titling, because it is a rigorous field operation involv-ing checks and rechecks of the results, is expensive. Its appropriateness in deep ruralareas and areas of low land value where markets are undeveloped is questionable.In such areas the system has often proven unsustainable.50 Most titling under Bankprojects is therefore focused on urban and peri-urban land and on high-value agri-cultural land, areas where land and credit markets are developing. This allows thesystem to generate fees based on transactions, which can help sustain the system.

While most Bank-funded land administration projects focus on systematicregistration, they are often asked to support in addition some sporadic registra-tion, where land is registered in response to requests from landholders. While thisis a less efficient use of Bank funds, systematic titling may take fifteen or twentyyears to cover a country, and in areas not yet reached by the process, there is aneed to meet urgent demands from individuals.

A variety of legal issues concerning land arise in these land administrationprojects.

2.9.1 The Legal Framework for Land Registration

Almost all land administration projects have a component that supports strength-ening the legal and regulatory framework for project activities, and almost all ofthose components seek some reform of the legal framework for land registra-tion.51 Where these reforms may be absolutely necessary for the project to

50 Searching for Land Tenure Security in Africa (John Bruce & Shem Migot-Adholla, eds.,Kendall-Hunt Publishing 1993).51 An interesting exception is the Bank’s prototype land administration project for Asia,the three-stage Thailand Land Titling Project. The project is still cited as best practice inthe Bank. The first two stages managed to work within existing laws and regulations withno discussion of legal reform; only in the PAD for the third project (Thailand Land TitlingProject III, 1995 (P004803)) is there a suggestion of a need for modest changes in the reg-ulatory frameworks.

Reform of Land Law in the Context of World Bank Lending 31

achieve its objectives, they are most likely the subject of conditions. In landadministration projects, the first step is to ensure that laws governing the threebasic tasks—adjudication, survey, and titling—are adequate.52

Experienced Bank task managers are quite familiar with the legal issues andmodels in this area. The key statutes are usually a Land Registration Act, a LandAdjudication Act, and a Land Survey Act, plus the regulations under these laws.But there are variations in the pattern; sometimes two of the acts are merged inone or the acts arranged differently in terms of the national hierarchy of laws.Some laws include considerable procedural detail, while in others these are leftto regulations.

In Cambodia, for example, the Land Law of 2001 contains the basic legal frame-work for title registration, adjudication, and survey but few details.53 The details arespelled out in substantial subdecrees and regulations. The Bank’s Cambodia LandManagement andAdministration Project has focused its legal reform assistance onelaboration of the subsidiary legislation related to adjudication and titling.54 If that

52 For example, the Bank’s Armenia Title Registration Project, 1999 (P057560), argued fora new Land Registration Law but had to make do with a 1979 enactment it consideredmarginal. The Moldova First Cadastre Project, 1999 (P035771), made enactment of sucha law and implementing regulations a condition of presentation of the loan to the Bank’sBoard. The Ukraine Rural Land Titling and Cadastral Project, 2003 (P035777), made pas-sage of a land law satisfactory to the Bank a precondition for the loan, and Parliament didpass such a law. Under the project, efforts will focus on drafting of a new mortgage lawand procedures for implementing the Land Code. The Bank had also sought creation of aunified cadastre and title registry. As an interim measure, amendment of Cabinet of Min-isters Resolution No. 689 dated May 15, 2003, provides for the gradual consolidationwithin the Cadastral Commission (CC) of registration activities carried out by a numberof agencies. This was a precondition for disbursement of the cadastral development com-ponent of the project; passage of a cadastre and/or title registry law satisfactory to theBank is a condition for disbursement of Phase 3 of the cadastral system development com-ponent of the loan. The Nicaragua Land Administration Project, 2002 (P056018), soughtnew laws, and a disbursement condition for the second tranche of the Nicaragua PRSC I,2004 (P082885), is passage of the two laws by Congress. 53 Land Law, promulgated as Royal Decree NS/RKM/0801/14, August 30, 2001, arts.226–46.54 The Cambodia Land Management and Administration Project, 2002 (P070875), sup-ported preparation of the following: Sub-Decree No. 46 ANK/BK of May 31, 2002, on theProcedures of Establishment Cadastral Index Map and Land Register; Sub-Decree No. 47ANK/BK of May 31, 2002, on the Organization and Functioning of the Cadastral Commission; Sub-Decree No. 48 ANK/BK of May 31, 2002, on the Sporadic Land Reg-istration; Prakas (regulation) of the Ministry of Land Management, Urban Planning andConstruction No. 112 DNS/BrK of August 21, 2002, on the Guidelines and Procedures ofthe Cadastral Commission; and Ministry of Land Management, Urban Planning and Con-struction, No. 001DNS/SD, Instructive Circular Relating to the Implementation of theProcedure of Establishing the Cadastral Index Map and the Land Register (SystematicRegistration), August 19, 2002.

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does not require amendment, Bank attention will then turn to regulation that fur-ther detail key processes.55

Often there are specific deficiencies that prompt remedial legislation or regulations. Some issues that recur across projects (those listed here are onlyillustrative) are

(a) the need to restructure land administration institutions to avoid overlap-ping mandates, turf battles, and unnecessarily complex procedures thathave high transaction costs, as in the Ghana Land Administration Project,2004 (P071157) and the Philippines Land Administration Project, 2000(P066069);

(b) the need to strengthen provisions on the legal conclusiveness of titling, animportant issue in the Cambodia Land Management and AdministrationProject, 2002 (P070875);

(c) the need to provide more adequately for systematic adjudication of landrights, notably in the Guatemala Land Administration Project, 2000(P049616), where the Bank conditioned effectiveness on satisfactoryamendment by executive accord of the Peten Land Law with regard toadjudication;

(d) public access to the land register, notably in the Romania General Cadas-tre Project, 1998 (P034213);

(e) ways to register communal and community land assets, notably in theCambodia Land Management and Administration Project, 2002(P070875) and the Laos Second Land Titling Project, 1996 (P075006);

(f) ways to register co-owned land, in the Sri Lanka Land Titling and RelatedServices Project, 2001(P050738);

(g) the ability of adjudication officers to make decisions based on incomplete documentary evidence and to rely upon oral evidence, in theSri Lanka Land Titling and Related Services Project, 2001 (P050738);and

55 For example, the Bulgaria Registration and Cadastre Project, 2001 (P055021); theSlovenia Real Estate Registration Modernization Project, 2000 (P055304); the Indone-sia Land Administration Project, 1994 (P003984); the Kyrgyz Republic Land and RealEstate Registration Project, 2000 (P049719); the Romania General Cadastre and LandRegistration Project, 1998 (P034213); the Lao Land Titling Project, 1997 (P004208);and the Sri Lanka Land Titling and Related Services Project, 2001 (P050738). The Russ-ian Federation Land Reform Implementation Support Project, 1995 (P034579), has aland registration component, and the conditions of effectiveness under VI in the DCAinclude “(d) issuance of procedures on registration of land and real estate acceptable tothe Bank.”

Reform of Land Law in the Context of World Bank Lending 33

(h) the need for a clearer statement of the conditions under which errors in theregister may be corrected, and by whom, an issue in the Cambodia LandManagement and Administration Project, 2002 (P070875).

Bank land administration projects have generally had good success in improv-ing the legal framework for land registration, but reforming land registration lawis not easy. Opposition comes primarily from the vested interests of attorneys andnotaries, whose income may be threatened by simpler, cheaper approaches. Theseemingly technical nature of these laws is in fact misleading; apparently innocu-ous provisions can have controversial outcomes, for instance on the gender dis-tribution of land rights.

One issue that has definite political resonance is the objection that legallyconclusive titling confirms the ill-gotten gains of land-grabbers, frustratingfuture restitution claims. Where legal remedies are available, as where conces-sions can be terminated or reduced for failure to fulfill development conditionsin the concession agreement, these injustices can be remedied without chal-lenging efforts to protect security of tenure. But in many cases the rights willhave been acquired legally and with due legal formalities, however much land-allocating officials may have abused their discretion. Confirmation of thoserights is sometimes the price of confirming the rights of the poor and vulnera-ble as well.

2.9.2 Security of Tenure: Content of the Rights to be Registered

A threshold question in a land administration project is: what property rights inland are available, and are they robust enough to be worth registering? If the prop-erty rights available are anemic, the considerable cost to record them will not beworthwhile. To take an extreme example, it would hardly make sense to invest insystematic registration under a tenure system based on nontransferable one-yearleases from government, subject to arbitrary revocation.

This issue is fundamental: as with computerization, simple registration ofweak rights is “garbage in, garbage out.” A Bank-funded project seeking to sup-port security of tenure through title registration cannot ignore the fact that theState can take property without compensation, and if the project seeks to supportdevelopment of land markets, it cannot ignore the fact that transactions in landare subject to onerous official consents. It must therefore seek to strengthentenure as well as register it.

For example, the loan agreement concluded for the Ghana Land Administra-tion Project, 2003 (P071157) reflects a concern with security of tenure through adisbursement condition that requires clarification satisfactory to the Bank of a

34 Land Law Reform

constitutional issue concerning the continued validity of customary land rights.56

A similar stress on robust rights for land administration projects can be seen inother countries as well, for instance in Indonesia,57 Nicaragua,58 and Bolivia.59

How much security of tenure is enough? There was a time when Bank taskmanagers would have been comfortable with nothing less than full private own-ership, with all the freedom of action that confers. However, experience andresearch have in recent years provided evidence that use rights, customary rights,and leasehold rights can provide farmers with security of tenure sufficient to theirneeds. In Southeast Asia, for example, Bank land administration projects oftentitle land still under ultimate state ownership, so long as beneficiaries have rela-tively substantial and secure (and even inheritable and transferable) use rightsin the land.60 Recent Bank projects in Africa are registering not only formaltenures less than ownership but also customary rights in land—not seeking totransform them to private ownership, as was done in Kenya61 in the 1960s andMalawi62 in the 1980s, but registering the customary right on its own terms, as

56 The PAD for the Ghana Land Administration Project, 2003 (P071157), in Part G(2)(iii),contains a condition of disbursement on specified components that requires the Govern-ment to provide “assurances, satisfactory to IDA, with respect to the continuing validityof customary freeholds and other traditional allocations of land.” Article 267(5) of the1992 Constitution placed this in doubt with a provision prohibiting the creation of any“freehold interest howsoever described” from chief ’s land, which some commentatorshave interpreted as outlawing the creation of, and possibly even undermining the validityof, “customary freeholds,” as Ghana’s common law courts call the primary right of useunder customary law.57 The Indonesia Land Administration Project, 1994 (P003984), systematically reviewedexisting laws on land, but with very limited impact. Reform of the legal and regulatoryframework is a continuing concern of the Indonesia Land Management and Policy Devel-opment Project, 2004 (P064728).58 The Nicaragua Agricultural Technology and Land Management Project, 2002(P056018), supported a national Committee for the Study of Agrarian Legislation in thehope of drafting a new law to consolidate and guarantee property rights, relying in part ona conditionality on the second tranche of an Agricultural Sector Loan from the Inter-American Development Bank (IADB) for passage of the law. 59 The DCA (June 26, 1995) for the Bolivia National Land Administration Project, 1995(P006197) in art. 5.01(a) requires amendment of several laws to achieve this end; thedetails are discussed thoroughly in the Letter of Land Policy of March 15, 1995, from theNational Land Agency to the Bank.60 The Laos Land Titling Project, 1997 (P004208): the Cambodia Land Management andAdministration Project, 2002 (P070875); and the Indonesian Land Administration Proj-ect, 1994 (P003984). 61 The Bank supported registration of Kenyan agriculturalists under the Land SettlementProject, 1960 (P001219), and of groups of ranches in pastoralist areas under the KenyaLivestock Project (01), 1968 (P001228).62 Lilongwe Land Development Project (03), 1980 (P001598).

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defined by customary law. The Côte d’Ivoire Rural Land Management and Com-munity Infrastructure Project, 1998 (P001194) registered rights of householdsderived from customary law,63 and the Ghana Land Administration Project, 2004(P071157) will, on a pilot basis, register rights of customary land authorities andsupports traditional land administration.64

Most Bank land administration projects address the issue of tenure moredirectly by supporting not just registration of existing rights but the conferring ofnew rights. These are land titling projects in which land registration has a “con-stitutive function,” creating new land rights as it registers them. One importantcontext in which land registration performs a titling function is the creation ofnew systems of property rights in land for citizens of states that are in transitionout of systems of state or collective ownership of land resources. Bank landadministration projects in Eastern Europe and the Commonwealth of Independ-ent States (CIS) countries are examples. Here the adoption of western propertyrights systems is driven in part by the desire to be more competitive withinEurope and may figure in EU accession discussions.65 Because of the economic

63 The experience with this project highlights a potential problem of basing titles tooexclusively on customary rights: the danger of excluding immigrant communities, whomay have weak or nonexistent customary rights. Land access for recent immigrants is acritical factor in the ethnic tensions underlying the current insurrection in Côte d’Ivoire.Similar complex problems of custom exist with insecurity of tenure under custom for for-mer slave communities, or “guest lineages,” whose ancestors “borrowed” land from olderfamilies in times of land plenty; and for women, who in some lineage systems have accessto land only through husbands, not in their own right. See Jean-Pierre Chauveau, TheLand Question in Côte d’Ivoire, Issue Paper No. 95, Drylands Program (InternationalInstitute for Environment and Development, August 2000); and Volker Stamm, The RuralLand Plan: An Innovative Approach from Cote d’Ivoire, Issue Paper No. 91, DrylandsProgram (International Institute for Environment and Development, March 2000). 64 The project will pilot the titling of customary allodial rights (the ultimate ownership bythe tribe or extended family, rather than individual or household rights) in Accra andKumasi, where most urban land is under customary tenure. Implementation will raisecomplex issues of: (a) exactly what title is registered; (b) whether it is registered in thename of the community, the chief, or the chief as trustee for the community; and (c) whowill prevail when there are disputes between a principal chief with primary allodial rightsover a large territory and subchiefs who claim subsidiary allodial rights over subterrito-ries. The project aims to support and reform the work of traditional land administrators,standardize procedures, make them more transparent and participatory, and improverecord keeping. Implementation has just begun.65 The basic membership criteria for the EU as laid down at the Copenhagen Summit inJune 1993 do not include reform of land law; indeed art. 259 of the Treaty Establishingthe European Community states that “This treaty shall in no way prejudice the rules inMember States governing the system of property ownership.” But once it has been agreedthat an Eastern European country has met the basic membership criteria, accession dis-cussions may raise land law issues: Poland’s land acquisition policy became an issue, asdid Hungary’s discriminatory policies against foreign land ownership.

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benefit, because of the desire to integrate with Europe, and because of prerevo-lutionary traditions of private ownership of land, the Eastern European countrieshave opted quite decisively for private ownership; some, such as Poland,Yugoslavia, and Hungary, had retained a limited amount of land under privateownership (household food plots, for instance) even under the Communist dis-pensation. The Bank has sought robust property rights in these countries in orderto have tenure that is adequate to title.66

The needed reforms have perhaps come hardest in Central Asia. Some coun-tries, such as the Kyrgyz Republic, have made the transition to private propertyrelatively quickly, but in others, such as Azerbaijan, Kazakhstan, Tajikistan, andUzbekistan, the reform process has been more halting. An anticipated landadministration project in Kazakhstan was cancelled in part because an earlierproject failed in its attempt to obtain a revision of the 1994 Land Code, which leftlandholders vulnerable to revocation of their land rights by officials and was notadequate for a market-oriented land economy.67

Some projects reflect narrower, more specific, concerns about property rights.While security of tenure is important to investment, the economic model used bythe Bank to explain the productive impacts of titling68 makes it clear that theseare best achieved through credit access and investment impacts, so land must bemortgageable, and to be mortgageable, it must be marketable. The BulgariaCadastral Project, 2001 (P055021), for example, focuses on problems with fore-closure under existing mortgage law and the condominium provisions of the law

66 For some projects, passage of a land law with robust property rights has been treated asa precondition for Bank involvement. The PADs for the projects for the Ukraine (UkraineRural Land Titling and Cadastre Development Project, 2004 (P035777)) and the KyrgyzRepublic (Kyrgyz Republic Land and Real Estate Registration Project, 2000 (P049719))reflect the importance of such laws being passed before projects could be undertaken. 67 The Kazakhstan Registration and Real Estate Rights Pilot Project, 1997 (P046044),noted the need for reducing the ease with which officials could revoke land rights underthe 1994 Land Code and features of the existing law that limited transactions; the DCA(May 16, 1997) (Schedule 5), had a number of conditions regarding institutional arrange-ments to ensure coordination between the cadastre and the land registry. The 1995 Struc-tural Adjustment Loan (SAL) (P008502) to the Kazakh government contained a conditionin the DCA of June 12, 1995 (Schedule 4), concerning revision of the Code to simplifyprocedures for land privatization and land transactions. The SAL required acceptance ofa new law by the Cabinet for submission to Parliament rather than actual passage. Accord-ing to the Implementation Completion Report for the Registration and Real Estate Proj-ect (June 1, 2001, at 13), a revised Land Code prepared with the participation of Bank-funded legal consultants was submitted to Parliament but had to be retracted after severepolitical criticism: The institutional arrangements for the pilot had not functioned well,and implementation of coordination between the cadastre and land registry had not beensatisfactory. An anticipated follow-on project, Kazakhstan Registration and Real EstateRights Project 2, did not go forward. The Land Code was enacted in 2003. 68 See Feder, supra n. 3, and Feder & Feeny, supra n. 3.

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on ownership; the Kazakhstan Registration and Real Estate Rights Pilot Project,1997 (P046044), on transferability of land rights; the Moldova First CadastreProject, 1999 (P035771), on ending a moratorium on sales of agricultural landand eliminating a requirement that banks that were foreclosing had to resettle theowners of the land foreclosed; in the Kyrgyz Republic Land and Real Estate Reg-istration Project, 2000 (P049719), on clarification and possible easing of a mora-torium on land sales; and in the Ukraine Rural Land Titling and Cadastre Project,2003 (P035777), on the need for a law on mortgages. The Sri Lanka Land Titlingand Related Services Project, 2001 (P050738), which is also concerned with theremoval of legal limits on the marketability of land, adopts an unusual approachto agreed-upon law reforms.69

2.9.3 Institutions: Getting Key Functions Under One Authority

One of the difficulties projects face—one that is especially serious for projectsthat seek to support systematic titling and registration of land—is that in somecountries the involvement of several government agencies is required. Forinstance, the tasks of demarcation and survey of landholdings and the keepingof survey records may be the responsibility of one government agency, perhapsa Cadastral Institute, while the machinery for registration is housed in another,perhaps the Ministry of Lands, Interior, or Justice. This tends to cause seriousinefficiencies when systematic titling and registration are attempted. It alsosubstantially increases the costs and time required for registration of transactions.

The Bank has urged that key land administration functions be consolidatedunder one authority. It has generally sought to persuade client governments toremove registration (though not adjudication of land disputes) from the courtsand even from the Ministry of Justice and consolidate it with the cadastral func-tion in a single land agency. It is sometimes argued that while involving the judiciary as a second institution provides checks and balances, which reduce cor-ruption, in some countries where the Bank is working on these issues, judges are

69 The PAD describes the need for such reforms and anticipates dialogue on them duringthe project, but the DCA sets out no conditions, just a general statement in 4(2)(c) thatgovernment will “undertake” legal reforms regarding restrictions on land transactions andorganization according to an agreed list. “Undertake” appears to refer to a good faitheffort rather than enactment, and the list is detailed in the Minutes of Negotiation, whichare not disclosed. Listing there does not create a legal obligation on the part of the client;it is simply a statement of shared intention. The list of legal reforms needed can beadjusted by agreement of the parties without amendment of the DCA, since they are notspecified there but only incorporated by reference to the minutes.

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poorly trained and corrupt and their involvement adds nothing but another hurdleto be negotiated.70

The fragmentation of land administration functions among several govern-ment agencies has been a particular problem in countries of Eastern Europe andthe former Soviet Union. What is known in the region as the “One Agency” issuehas been a major concern of Bank staff. While projects in One Agency countries(Armenia, Moldova, and Kyrgyz Republic) are performing well, projects in TwoAgency countries (Bulgaria, Croatia, and Romania) perform less well. Somereforms have, however, been forthcoming. Bulgaria has passed a law that trans-fers the registration function out of the courts into the Ministry of Justice; Croatiahas taken the same function away from judges and given it to clerks; and Roma-nia has shifted the function out of the courts and the Ministry of Justice into thecadastral agency. Nevertheless, the issue continues to be a concern in other coun-tries in transition, including Russia, Slovenia, and Ukraine.

The issue of fragmentation of land administration functions arises in otherparts of the world as well. It has been addressed by the Bank and its clients suc-cessfully in Cambodia, El Salvador, and the Lao Peoples Democratic Republic(Lao PDR), where the Bank refused to move forward with the design of a projectuntil land administration functions were consolidated in a single agency. Whilethe issue is less often addressed in the Latin American context, legislation for aNational Land Institute was sought under the Bolivia National Land Administra-tion Project, 1995 (P006197).

Such a shift to a single institution can be contentious, especially in long-established systems. Because change threatens vested interests it can be difficultto achieve. The experience under the Philippines Land Administration and Man-agement Project, 2000 (P066069) is illuminating. The project pursued one of itsobjectives, the unification of land administration functions in a single agency, bysupporting the development of proposals along this line by the Ministry of Natural Resources. That Ministry did land titling and already operated a title reg-istry. Its unification proposals were resisted by the Ministry of Justice, whichoperated a parallel judicial titling system, and the Agrarian Reform Agency,which also granted land rights. Power to reorganize units of government wasvested in the Office of the President, and initially Presidential backing for thechange seemed to insure success. However, it was determined that this reorgani-zation was sufficiently contentious that it had to be sent to Congress, with theprospect of long delays. In the interim, the Ministry of Natural Resources

70 This issue has sometimes been the subject of contention among donors. Some Europeandonors, Germany in particular, manage efficient dual-agency systems that involve thecourts. The EU, with both systems in use among its members, has not taken a position.Bank experts acknowledge that the German system works well but are skeptical that it canbe replicated in countries in transition and so favor the single-agency model.

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adopted a de facto “one stop shop” approach, setting up in each pilot titling areaa land office which had space for each of the government agencies involved, hop-ing that proximity and encouragement could help achieve cooperation and effi-ciency without a legal consolidation. Late in the project, it was clear that this hadnot happened to the extent hoped, and the Ministry redoubled its efforts to movethe unifying legislation that had been submitted to Congress out of committeeand onto the floor for a vote. They failed to do so because of strong oppositionfrom judges and lawyers. The Bank then embarked on a Land Administration andManagement II Project, 2005 (P073206), with this need still on the agenda.

A similar issue arose in the Bank’s urban titling work in Ghana under GhanaUrban II—Secondary Cities, 1990 (P000910). There, the older deed registry sys-tem, which covered scattered parcels around the country (primarily in urbanareas), was to be replaced by a modern title registration system. It will taketwenty to thirty years to expand the title registration system to cover the wholecountry. In the meantime, the older deed registry system remains operative inareas that have not been reached by systematic work because it is the only mech-anism by which to obtain title in those areas and therefore cannot be done awaywith. The relationship between the two systems was not well spelled out in thelaw, and confused and competitive relations between the systems and agenciesdeveloped. Under a land-titling component in Ghana Urban II, the older DeedsRegistry, based in the Ministry of Justice, failed to make available to the TitleRegistry the deed information for areas of Accra to be titled systematically.Because the systematic titling went forward without that information, there arecontradictions between ownership records in the two systems.

The two systems continue to coexist. In cases of conflict, the courts in Accratend to investigate the rights involved from scratch, undermining the usefulnessof both systems and public confidence in the conclusiveness of title registration.Now that the Deeds Registry has been shifted to the Ministry of Lands, the GhanaLand Administration Project, 2004 (P071157), should not face similar problems.One lesson from this experience is that title registration laws should specificallyprovide for how old and new systems should relate during the transition and spec-ify the ultimate authority of the title registry where conflicts arise.

2.9.4 The World Bank Operational Policy on Involuntary Resettlement

It was noted earlier71 that the Bank OP on Involuntary Resettlement has land lawcontent; task teams working on land administration projects must consider howthis interacts with their projects.

71 See supra section 2.4.

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Discussions during the revision of the Involuntary Resettlement OP (OP 4.12,December 2001, revised April 2004) dealt explicitly with whether the titling com-ponents of land administration projects “triggered” the OP. It was suggested thatwhen one claimant was adjudicated as owning the parcel rather than another, thelosing party is displaced (“involuntarily resettled,” in the language of the OP), inwhich case the OP would be triggered and its requirements of compensation forland and support for resettlement costs might apply. After task managers for landadministration projects in the Bank’s Land Policy and Administration ThematicGroup argued vigorously that no adjudication system, including the courts, couldwork under such requirements, a footnote was added to the OP explicitly exclud-ing land disputes between private individuals from the operation of the OP.72

Disputes between government and private individuals, however, were notexcluded, and so are covered. A government, under a Bank-supported land admin-istration project, must either (i) allow squatters to remain as squatters on the landit owns; preferably, (ii) provide them with secure rights to that land; or, if it evictsthem, (iii) resettle them and compensate them. Some such cases will arise underalmost any land administration project; they will be common where governmentowns extensive lands, which will invariably have some illegal occupants. Issuesalso commonly arise around methods of registering occupied public rights of way,which were often occupied before they were declared rights of way. A Resettle-ment Policy Framework (RPF), which is referenced in the credit agreement andthus commits the Bank and Government to an approach to resettlement consistentwith the OP standards, can provide a basis for handling such cases as they arise.73

While an RPF can address this concern,74 in most cases task managers andgovernments seek to design the project to avoid the possibility that displacements

72 Footnote 8 to paragraph 3(a) of the OP states: “This policy also does not apply to dis-putes between private parties under titling projects, although it is good practice for theborrower to undertake a social assessment and implement measures to mitigate adversesocial impacts, especially those affecting poor and vulnerable groups.” 73 There may be other reasons why an RPF needs to be done in a land administration proj-ect that has a public works component, such as construction of offices that will displaceland users. 74 The Involuntary Resettlement OP was triggered and addressed in the following landadministration projects: Ghana Land Administration, 2004 (P071157) (for civil works,with a resettlement policy framework (RPF) prepared); Cambodia Land Management andAdministration, 2002 (P070875) (by concerns re displacement, with an RPF prepared);Lao PDR Second Land Titling, 2003 (P071007) (for civil works, with an RPF prepared);and Panama Land Administration, 2001 (P050595), Nicaragua Land Administration,2002 (P056018), and Honduras Land Administration, 2004 (P055991), all three of whichprepared process frameworks to deal with livelihood impacts due to delimitation of pro-tected areas and indigenous territories. Only in the Cambodia case does the applicabilityof the OP to government-private disputes seem to have been a consideration in address-ing involuntary resettlement.

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will occur that would trigger the OP. This understanding may be embodied in theCredit Agreement as conditions. For example, the Sri Lanka Land Titling andRelated Services Project, 2001 (P050738) in Schedule 4 of the DCA providesthat the government will not cause displacement or restrict access through titlingof government land under the project (DCA, 4.3(a)). In other cases, where gov-ernment land is occupied and an accommodation for the occupants cannot bereached, the land is simply not registered. Either approach avoids triggering theOP. Unfortunately, monitoring mechanisms are often not in place to ensure compliance with these understandings. Such approaches may avoid complica-tions and speed the titling process, and may be consistent with the letter of the OP,but they potentially exclude vulnerable land users from the benefits of the proj-ect.

2.9.5 The World Bank Operational Policy on Indigenous Peoples

OP 4.10 provides that Bank-funded projects must seek to respect the rights andconcerns of indigenous communities, even more than those of other land users.Paragraph 17 of the OP, which deals specifically with land titling projects, indi-cates a preference for legal recognition of those rights as either customary rightsor individual and communal ownership rights, but where neither option is avail-able under national law, it will accept legal recognition as “perpetual or long-termrenewable custodial or use rights.”

Few land administration projects have so far confronted these issues, prima-rily for two reasons:

1. Most indigenous peoples live at the fringe of development, in the moun-tains or in the rain forest, far from the high-value, increasingly commer-cialized land targeted for land registration.

2. The land rights of indigenous peoples are largely customary and there oftendoes not exist, under national law, an adequate legal framework for record-ing customary land rights. Indeed the communities that own such land maynot even be recognized as legal persons under national law, making it diffi-cult to register land in their name.

These are problems for state provision of security of tenure to any communitythat relies on customary land tenure rights, whether or not the group meets theBank’s criteria for an indigenous people.

In these circumstances, the land administration project is often designed toavoid areas where customary law, including that of indigenous peoples, applies—task managers may be particularly cautious because early titling projects in

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Africa have been roundly criticized as having botched the conversion of custom-ary land to individual titles75—but some projects attempt to develop a policy andlegal framework for registration of land affected by customary tenure.

A phased approach, for instance, is spelled out in the Project Appraisal Document (PAD) for the Indonesia Land Administration Project, 1994(P003984):

1. Exclude areas with hak ulayat (customary communal land rights) fromareas for systematic adjudication under the project.

2. Do not register systematically any hak ulayat land if such is found in theproject area.

3. Examine the feasibility, desirability, and methodology of registering hakulayat in three selected areas through adat [customary] land right studies.

4. Identify issues related to such rights.

Toward the end of the project, in part as a result of these discussions, Governmentenacted a regulation providing for registration of communal land rights.76

Another project dealing with this issue is the Cambodia Land Managementand Administration Project, 2002 (P070875). Here there is a legal basis fortitling: the Land Act 2001 provides for the ownership of land by indigenous peo-ples and for the titling of that land.77 The NGO community has given effective

75 Parker Shipton, The Kenyan Land Tenure Reform: Misunderstandings in the Public Creation of Private Property, in Land and Society in Contemporary Africa (R.E. Downs& S.P. Reyna, eds., University of New Hampshire Press 1988); Simon Coldham, TheEffect of Registration of Title upon Customary Land Rights in Kenya, 22(2) Journal ofAfrican Law 91–111 (1978); and Shem Migot-Adholla et al., Security of Tenure and LandProductivity in Kenya in Bruce & Migot-Adholla (eds.) supra n. 50, at 119–40.76 Regulation of Minister of State for Agrarian Affairs/Head of BPN, No. 5 of 1999, Guideto Settlement of Issues Related to Adat Law, Communities’ Ulayat Rights, in art. 4. Thisis a less than comprehensive legal solution to the issue, however, and the extent of imple-mentation is unclear. The issue remains on the agendas of both the client and the Bank,and will be highlighted if current plans for decentralization of land administration inIndonesia move forward.77The rights of indigenous communities are dealt with in arts. 23–28, particularly art. 26,which states: “Ownership of the immovable properties described in Article 25 [land tra-ditionally used] is granted by the State to the indigenous communities as collective own-ership. This collective ownership includes all of the rights and protections of ownershipas are enjoyed by private owners. But the community does not have the right to dispose ofany collective ownership that is State public property to any person or group. The exerciseof all ownership rights related to immovable properties of a community and the specificconditions of the land use shall be subject to the responsibility of the traditional authori-ties and mechanisms for decision-making of the community, according to their customs,and shall be subject to the laws of general enforcement related to immovable properties,such as the law on environmental protection.”

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voice to the demands of indigenous peoples in the mountainous areas in the westof the country for protection of their land. GTZ78 technical assistance under theproject is now supporting a pilot study, with demarcation and adjudication, in twoindigenous communities. The current project does not plan to title these lands, asthey are outside the project provinces, but the communities may elect to do so onthe basis of the pilot work carried out. The experience of the pilot will inform thedevelopment of detailed regulations on titling of customary lands, to supplementthe single authorizing article in the Land Law.

2.9.6 Gender and Land

The World Bank has an OP 4.20 on Gender and Development79 that, while it callsfor nondiscrimination, does not specifically mention property rights. Nor does itprovide explicit guidance on how to operationalize nondiscrimination in projectcontexts. Task managers of land administration projects do, however, confrontimportant land law issues that affect women differently than men. Land adminis-tration projects can influence the initial gender distribution of land rights atwatershed transitions in property systems, for instance from state to private own-ership or from customary to state systems. Failure to provide wives with landrights can affect their standing in the community, their bargaining power withintheir households, and their sense of self-worth. It can also result in real landless-ness and poverty when women are widowed, divorced, or abandoned. Any seriousattempt to address poverty issues in the land sector must deal with this problem.80

For state or collective ownership systems, initial land distributions to house-holds during reform normally are based on household size and household mem-bers are listed on distribution documents. Specific shares in hectares may be allo-cated for each household member. But there is a tendency for the State to then dealwith the new farm family as a household through the household head, usually aman, and for the title to be issued in the name only of the head of household.81

78 Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH is a nonprofitinternational corporation for sustainable development with worldwide operations; itimplements much of Germany’s development assistance program (see http://www.gtz.de/english).79 OP 4.20, Gender and Development (March 2003).80 For a classic examination of these issues for Latin America, see C. D. Deere & M. León,Empowering Women: Land and Property Rights in Latin America (University of Pittsburgh Press 2001).81 A thorough study exists for Albania: Susana Lastarria-Cornhiel & Rachel Wheeler,Gender, Ethnicity and Landed Property in Albania, Working Paper No. 18, Albania Series(Land Tenure Center, U. Wisconsin–Madison 1998). While a number of unpublishedreports on the gender impacts of privatization have been done by units within the Bank,they are largely anecdotal, with little data on outcomes.

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In the transition from customary land tenure to formalized systems, similarproblems arise. Often this transition involves individualization, with greaterrights to sell or mortgage, and the titling process commonly vests rights exclu-sively in the male head of household. In the patrilineal systems that predominatein most of Africa, the man does “own” the household land, but wives have pro-tections under custom that tend to be neglected in the adjudication process, suchas the obligation of a husband to provide his wife with land to farm, which iscommon in many systems.

How do these issues arise in the context of land administration projects? Inland titling women may be given titles, jointly titled with their husbands, or titledonly when they are household heads. In systematic adjudication of rights, suchrights as women have in land may either be recorded or they may be neglected.In a title registration system, where unregistered rights are ineffective, this cre-ates the risk that women’s rights will be lost because they are not recorded. Theseissues are not often confronted directly by land administration projects. It is com-monly assumed that national law is adequate if it does not de jure discriminateagainst women in landholding, but experience shows that even where womenhave valid legal claims upon land, they can be lost in the registration process ifadjudication staff do not take affirmative action.

The Bank has not sponsored major reform legislation on this issue, but it hasencouraged greater gender inclusiveness in the rights registration processthrough reform of implementation procedures. In the Philippines, for instance,the Land Administration and Management Project, 2000 (P066069) played amajor role in obtaining the 2002 repeal of a 1936 administrative order; the repealremoved gender bias in the acceptance and processing of applications for home-stead patents and other applications for public lands.82

A number of other land administration projects, while not seeking changes inlaw, have been proactive in ensuring that the rights women do have are not lostwhen rights are adjudicated. This is a serious concern, because even when the lawgives women rights to land, in practice there are cultural reasons and reasonsrelated to authority within the household that may lead to failure to recordwomen’s rights during adjudication.

Two East Asian efforts supported by the Bank have recently addressed theseissues and been recognized as good practice. The first is the Lao PDR LandTitling Project, 1996 (P004208), which incorporated gender sensitivity training

82 Para. 8 of the Land Administrative Order 7–1 (April 30, 1936), “Rules and RegulationsGoverning the Filing and Disposition of Applications of Alienable Lands of the PublicDomain or for Real Properties in the Commonwealth of the Philippines,” was repealed byDepartment of Natural Resources Administration Order No. 13, Series of 2002.

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for field adjudication staff and public education campaigns that covered, interalia, women’s land rights issues. Moreover, the Lao Women’s Union (LWU) hasbeen integrated into implementation of the project.83

The second good practice case comes from Vietnam, where the 2001 DecreeNo. 70 on Implementation of the Marriage and Family Law required that all reg-istrations of land use rights must be in the names of both spouses. The Bank sup-ported a pilot program that focused on such activities as ensuring that forms usedin adjudication were appropriate for joint titling and that requirements of docu-mentation (for example, tax receipts, usually in the husband’s name) did not standin the way of women asserting their rights. The project substantially increased thenumber of parcels registered to women, especially the number of parcels regis-tered jointly to husbands and wives. The case makes the point that simply refram-ing forms can have a major impact.84

The Land Policy and Administration Thematic Group and the Gender andDevelopment Thematic Group in the Bank recently completed a portfolioreview of gender in land administration projects and sponsored four case stud-ies of land administration and reform projects (in Azerbaijan, Bolivia, Ghana,and Lao PDR). The Bank has now published a document synthesizing thesestudies.85

How far can the Bank and its clients go in promoting women’s land rights aspart of the titling process? The project must comply with national law and cannotforce the registration of rights that women do not have. But in the field adjudica-tion process, there are opportunities for convincing beneficiary families to regis-ter their land jointly. Husbands and wives may agree to joint titling of land evenwhere it is not required under national law, and projects can quite legitimatelyencourage them to do so through public education activities, pointing out thelegal advantages of joint titling for the family.86

83 Zongmin Li, The Lao People’s Democratic Republic: Preserving Women’s Rights inLand Titling (Module 9, Investments in Land Administration, Policy and Markets), inAgricultural Investment Sourcebook, 411–12 Agricultural and Rural DevelopmentDepartment (World Bank 2004).84 Kabir Kumar, Land Use Rights and Gender Equality in Vietnam, Engendering Devel-opment No. 1 (World Bank 2002).85 World Bank, Gender Issues and Best Practices in Land Administration Projects, A Synthesis Report (World Bank 2005), prepared by consultants Renée Giovarelli, SusanaLastarria, Elizabeth Katz, and Sue Nichols, is an unusually thorough and frank look at thehandling of gender issues in four Bank land projects.86 The experience of three countries with joint titling is reviewed in Susana Lastarria-Cornhiel et al., Joint Titling in Nicaragua, Indonesia and Honduras: Rapid Appraisal Synthesis (Land Tenure Center, U. Wisconsin–Madison 2003).

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2.9.7 Settling Land Disputes

Land administration projects support adjudication of land disputes in the process ofsystematic field operations to resolve conflicting claims to land. Though this is ofgreat importance to the success of these projects, it can only be treated summarilyhere; it deserves a paper of its own.The law governing systematic adjudication gen-erally provides for a field mediation procedure, which may be carried out by an adju-dicationofficer (amemberof thegovernment team),possiblyassistedbylocalasses-sors or by a local mediation committee created for the purpose.The committee is insome cases given the status of a local court; it may even be chaired by a judge.Wherethe court system is seriously inadequate, projects sometimes support a second levelof mediation institutions for cases where local mediation fails.They may even fundlegal assistance for the poor and disadvantaged to help level the playing field.

For example, the Cambodia Land Management and Administration Project,2002 (P070875), supports a system of Cadastral Commissions at the district,provincial, and national levels to hear appeals of field adjudications. Replacingan older dispute settlement commission structure in the Ministry of Interior, thesystem brings this function under the Ministry of Lands. The Cadastral Commis-sion was created pursuant to Article 47 of the 2001 Land Law. Where local medi-ation fails, the parties can take their dispute to the district and then the provincialcommission, each of which again mediates. The National Commission, if a dis-pute reaches it, is mandated by Article 47 to render a decision, which is subjectto judicial review at the request of a dissatisfied party.87

The project has funded the drafting of regulations to govern the proceedings ofthese commissions88 as well as training and equipping them. That support, pro-vided initially only to areas being titled under the project, was recently expandedto the Cadastral Commission nationwide, if on a more modest scale. The projectis also providing funding for an NGO, Legal Aid of Cambodia, to expand its activ-ities to provide poor and disadvantaged parties with advice and representationbefore the commissions. The disputes for which legal aid is being provided in thepilot phase involve villages or other groups of claimants that have been expelledfrom land they claim by government agencies, in particular the military and theforestry department. It is too early to assess the success of this program. 89

87 Unfortunately, art. 47 does not state to which courts appeals should be taken from deci-sions of the National Cadastral Commission, a subject being discussed by the Ministry ofLands and the Ministry of Justice.88 Sub-Decree No. 47 ANK/BK of May 31, 2002, on the Organization and Functioning ofthe Cadastral Commission.89 The courts may be reluctant to share the dispute settlement function. The CambodianMinistry of Justice unsuccessfully raised the issue of whether the national law on the judi-ciary or even the Constitution had by assigning this competence to the judiciary precludednonjudicial settlement of disputes.

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There are other cases of support by land administration projects for dispute set-tlement beyond the field adjudication work, especially in Bolivia, Guatemala, andNicaragua, and in the case of Guatemala, for the provision of free legal services.90

2.10 Land Reform

The Bank has for some time been involved in land reform in a variety of contexts;its work on land reform has received new impetus from the recent emphasis onpoverty alleviation. The World Development Report 2000/1 emphasizes the vul-nerability created by a lack of assets: “Lack of adequate assets can set up a viciousspiral in which actions to cope in the short term [such as distress sales of land]worsen deprivation in the long run.”91 The Bank’s 2004 PRR on Land emphasizesthat land is both the major element of wealth for most rural households and thebasis for attempts by most of those households to escape poverty.92 Poverty is thusas much about lack of assets as it is about income; to place a durable productiveasset in the hands of the poor is a remarkably effective way to fight poverty.

Donor support for land reform has waxed and waned since World War II. Theoptimism engendered by the East Asia reforms of the 1950s gave way to pes-simism in the wake of problematic reforms in Latin America in the 1960s and1970s, reforms that were politically deeply divisive and were often rolled backwhen the party in power changed. In some countries, land reform gave rise to largebureaucracies that failed to efficiently deliver land and needed support for benefi-ciaries.93 Though economists in the Bank have argued the economic case for landreform since at least the mid-1970s,94 finding the right implementation strategieshas been difficult. In the 1980s and 1990s, land reform meant the breakup of col-lective and state enterprises in the postsocialist world—a process the Bank hasassisted primarily through titling and registration projects for new private land-holders, as for example in the Kyrgyz Republic Land and Real Estate Registration

90 Bolivia National Land Administration Project, 1995 (P006197), Guatemala LandAdministration Project, 2000 (P049616), and Nicaragua Land Administration Project,2002 (P056018). 91 World Bank, World Development Report 2000/2001, Attacking Poverty; Opportunity,Empowerment and Security 34 and 39 (World Bank 2001).92 World Bank & Klaus Deininger, Land Policies for Growth and Poverty Reduction.A World Bank Policy Research Paper xx (World Bank & Oxford University Press 2003).93 The Latin American reforms of the 1960s and 1970s were evaluated during the 1980s.See Alain de Janvry, The Agrarian Question and Agrarian Reformism in Latin America(Johns Hopkins University Press 1981); Searching for Agrarian Reform in Latin America(William C. Thiesenhusen, ed., Unwin Hyman 1989); and Peter Dorner, Latin AmericanLand Reforms in Theory and Practice: A Retrospective Analysis (University of WisconsinPress 1992).94 World Bank, Land Reform: Sector Paper (World Bank 1975).

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Project, 2000 (P049719). The Bank has, however, sometimes been involved indesigning the regulatory framework for implementing the land reform itself, as inthe Tajikistan Farm and Privatization Support Project, 1999 (P049718).

Today a new generation of Bank land reform projects is implementing an alter-native approach, “community-based land reform,” in which Bank funds are pro-vided to groups of beneficiaries to purchase land. The Bank’s pilot work with thisconcept had earlier been hampered by a Bank rule against disbursement againstland,95 but in 2003 the Managing Director exempted community-based land reformprojects from this prohibition and set up a Community Land Purchase Committeewithin the Bank to vet projects and monitor success. In August 2004, the “expen-diture eligibility” reforms, designed to loosen a variety of restrictions on the activ-ities the Bank can fund, did away more broadly with the prohibition of use of Bankfunds for land purchases. However, it maintained a Land Purchase Committee bothto review projects seeking approval for land purchases and to craft guidance forBank staff on use of land purchases in a much broader range of contexts.

The community-based land reform approach, with its reliance on the marketmechanism, is not (as is sometimes suggested) grounded in an idealization ofmarkets but rather on a recognition that land sale markets will not, left to them-selves, move land to those who have too little, although the land-poor are efficientproducers.96 Early experience suggests that this reform model is a relatively effi-cient way to move land to the poor because it reduces political tensions, bureau-cratic inefficiencies and corruption, and court disputes.

The legal issues that arise in the community-based land reform projects are ofquite a different nature than those arising in compulsory land acquisition pro-grams. Under the criteria applied by the Land Purchase Committee, a project willbe approved to purchase land only where the purchase is for a productive pur-pose, where the land market is sufficiently developed to provide an efficientmeans of transferring land, and where mechanisms are in place to ensure safehandling of funds. These requirements, originating with the mandates of productivity and efficiency in the Bank’s Articles,97 are legal rather than merelypractical requirements. They necessitate careful inquiry into (a) the forms of

95 The prohibition was included in para. 2(b) of OP 12.00 on Disbursement (February1997), now repealed, where land was listed among items against which Bank funds couldnot be disbursed. 96 There are a number of reasons why markets do not move land to the poor, even thoughsmallholders are remarkably efficient producers; the most important involve distortionsin the credit market that deny the poor access to credit to purchase land. In addition, thevalue of land in agriculture is inflated by its potential value in other uses to levels thatfarmers cannot afford. See Deininger, supra n. 4, 96–97. 97 See art. 1, International Bank of Reconstruction and Development, Articles of Agree-ment (as amended, effective February 16, 1989).

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tenure available; (b) whether the seller has good title to the land to be purchased;(c) the efficiency of the land market (including regulatory restrictions, creditmarket imperfections, and the distortions that both introduce into the land mar-ket itself ); and (d) the forms of organization available for beneficiary groups,which must provide the juridical personality required to hold land.

The flagship project is the Brazil Land-Based Poverty Alleviation Project, 2001(P050772). It was possible to acquire this experience before there was an exemp-tion for land purchases using Bank funds because the client governments were ableand willing to provide the purchase funds while the Bank covered relocation andinvestment costs. This project extends to several Brazilian states a program pilotedin 1996–97 in the State of Ceara (Ceara Rural Poverty Alleviation Project (Ln 3918-BR)). The pilot showed that the process used was effective and agile, ben-eficiaries responded well to the opportunity, and the prices obtained compared favor-ably with those paid in compulsory acquisitions. Early experience with loan repay-ments, after a five-year grace period expired, has been positive. Concerns of landreform advocates about the impact of the new project on the federal compulsoryacquisition program were alleviated by a decision that the new project will not fundpurchases of any land eligible for taking under the federal program of compulsoryacquisition, establishing a complementary relationship between the two programs.

The PADs and the DCAs for both the pilot and the new project are devoid ofconcerns, conditions, or covenants relating to reform of the law relating to land.This is because the large holdings to be purchased under this program belong toa formalized land sector, one in which full private ownership is well established,land is registered, and the legal framework for land transactions is relatively welldeveloped. Unlike compulsory acquisition programs, there is not a series of legalhurdles to be surmounted under this model—just the normal requirements forvalid land transactions. There is a good deal of legal work required under such aproject in terms of drawing up articles of association or incorporation of thegroup, the loan agreement to the community for the purchase, land conveyancing,registration of sales, the mortgage burdening the initial group title, arrangementsfor titling when the mortgage is repaid by the beneficiaries, and arrangements forlegal subdivision of the land once the group has title (de facto subdivision willusually have been accomplished earlier). But these are all relatively routine mat-ters in the Brazilian legal system.

The first project operating under the exception allowing the purchase of landwith Bank funds for community-based land reform is the Andhra Pradesh RuralPoverty Reduction Project, 2003 (IDA-37320/P071272). Land purchases arebudgeted at $4 million, with land purchase being one possible use of funds underthe project’s Community Investment Fund. Investment funds will also be provided to beneficiary groups. The project commissioned studies of the opera-tion of land markets and the land administration machinery prior to appraisal andconcluded that, with precautions, these could safely be used. The project

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benefited from two detailed legal reviews of the arrangements, one by a legalconsultant hired by the project design team and the other as part of the externalreview process used by the Land Purchase Committee.

The Andhra Pradesh Project has an Operational Manual for Land (OM)98 deal-ing with land purchases, referenced in the paragraph 4.3 of the DCA. One of itsrequirements is striking: While membership in the beneficiary group is not lim-ited to women, it is specified that land purchased “will be given in the name ofwomen only,” presumably referring to the titling. The project may deviate fromthis general rule in one project district in order to conduct a comparison study(OM II.C.7). The OM also states eligibility requirements for land that seek to con-firm that productivity will be increased, responding to a requirement of the Bank’sArticles. A condition in the DCA requires assessment of the productive impact ofthe project (schedule 2(2)(iii)). The DCA also requires that the land not be occu-pied by households that would be involuntarily displaced in case of a purchase(OM II.C.3(a)). Annex 4 to the OM includes forms for Memoranda of Under-standing between different levels of local government regarding responsibilitiesunder the program, between local government and the beneficiary group coveringthe loan, and between the lender and the borrower regarding the mortgage.

A second project, the Malawi Community-Based Rural Land DevelopmentProject, 2004 (P075247), has been approved and implementation has begun. Theproject will provide funds for land purchases by communities from freehold andlong-term leasehold estates in southern Malawi. In this case, the funding was pro-vided to the government in the form of an IDA grant. During appraisal of theproject, several legal issues arose:

1. Most of the land to be purchased will come from estates establisheddecades ago and registered under an old Deeds Registry system. Malawialso has a more recent Title Registry system running in parallel. It wasdecided that to provide adequate security of tenure, the land purchasedshould be moved into the Title Registry system.

2. Some of the estates to be purchased are under long-term leasehold from theState; it was decided that the beneficiaries should receive a renewal of theterm (40–99 years).

3. An issue arose as to whether the beneficiary group could decide that itwanted to take the purchased land back into the customary land tenure system. It was decided that this should be an option and could be done by atransaction on their part in the case of freeholds, or by the Ministerdegazetting the land as government land in the case of leases.

98 State of Andhra Pradesh and Society for the Eradication of Rural Poverty, OperationalManual for Land, December 12, 2002.

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4. The form of association for the purchasing group was debated; the Ministrypreferred a trust arrangement but it was decided to leave this open so thatpurchasers could experiment with a number of possible forms.

Unlike the projects in Andhra Pradesh and Brazil, the Malawi project containsa land administration component, in recognition of the weakness of the Ministry’scapability in the Southern Region. In this case the legal framework for landadministration is adequate (it had been used by an earlier Bank project),99 so theproject focuses on capacity-building, especially in the regional title registrationoffice that will need to register the new holdings.

While these early community-based land reform projects represent an impor-tant departure for the Bank and raise important legal issues for consideration dur-ing the design process, they seem not to have required much by way of reform ofthe law relating to land. They do have one obvious need, however, and that is needfor a legal framework that allows secure transactions in land rights. This has beenpresent in both the Andhra Pradesh and Malawi projects, which have targetedland that has been titled where the legal framework is fairly well developed and areasonably efficient land market is functioning. The lack of need for legal reform,as a precondition and in terms of effective land delivery, has been part of thebeauty of this approach.

On the other hand, the task team must do due diligence to establish that thereare no problems. An assessment of the legal framework should be funded duringpre-appraisal to look at freedom to transfer land rights, formalities to transferland, and registration of transactions under national law. It will also be importantto examine regulatory distortions of the land market. In any given case, legalreforms might be needed to ensure efficiency in land acquisition before there isan adequate legal framework for community-based land reform in place.

2.11 Natural Resource Management

One of the most systematic and substantial reforms of land policy and law sup-ported by the Bank was in the context of a forestry project, the Tanzania ForestResources Management Project, 1992 (P002785).100 The work built upon a land-mark public consultation and report by the Presidential Commission of Inquiry

99 The relevant laws are the Land Act, 1965, and the Registered Land Act, 1967, both ofwhich had been used for land titling and registration under the Bank’s Lilongwe LandDevelopment Project, 1980 (P001598). 100 Tanzania Land Act, 1999, and Village Land Act, 1999. The role of the Bank in sup-porting the policy reform and subsequent legal reforms is described online at http://web.worldbank.org/external/projects/main?pagePK=64312881&piPK=64302848&theSitePK=40941&Projectid=P002785.

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into Land Matters.101 The study and policy development process under the proj-ect produced a new Land Policy in 1995 and, with DFID technical assistance, anew Land Law in 1999, the final year of the project.102 The new law, inter alia,affirms the right of villages to use by-laws to manage their natural resources;these are facilitating the replication of a number of the household and communityforestry initiatives developed under the project.103

This, however, is unusual. Normally the managers of a natural resource man-agement project, like managers of land administration projects, tend to focus onthe specific legal reform needs of the project itself. Under the Bank-supportedColombia Natural Resource Management Program, 1993 (P006868), local com-munities in Colombia’s Choco Region on the Pacific were, according to the PAD,unable to manage their natural resources as the project envisaged because theentire region was classified as a forest reserve: “Clarification of the land owner-ship situation is essential for the design of resource management and conserva-tion policies, in order to assess the convergence of interests of the parties affectedand involved, [and] the distribution of economic benefits and costs.” A legalregime for titling indigenous reservations had existed for some time, and landwas titled both to individuals and the Amerindian communities. New reservationswere created and existing reservations expanded and their boundaries demar-cated. Under the 1991 Constitution and Law 70, 1993, passed just as the projectbegan, it also became possible to provide collective titles to land to Afro-Colombian communities.104 The project did not occasion major law reforms butworked on regulations and contractual arrangements for implementation of theselegal reforms in the Choco Region. The project eventually issued 83 titles

101 Better known as “The Shivji Report” after its Chair, Professor Issa Shivji of the Facultyof Law, University of Dar Es Salaam, the report is an extraordinarily frank and thought-ful consideration of national land tenure policy. Its proposals were radical, and the Bank-funded effort became the context in which the Tanzanian land administration bureaucracy,heavily criticized in the report, had to come to terms with its recommendations and definea new land policy. The report has been published as Government of the United Republicof Tanzania (Ministry of Lands, Housing and Urban Development), Report of the Presi-dential Commission of Inquiry into Land Matters, vol. I, (Scandinavian Institute forAfrican Studies 1994). 102 The process is recounted by the drafter in McAuslan, supra n. 43, at 267–272, and com-mented upon by the former chairman of the Commission of Inquiry in Issa G. Shivji, NotYet Democracy: Reforming Land Tenure in Tanzania (International Institute for Environ-ment and Development 1998). 103 See Liz Wiley, Finding the Right Legal and Institutional Framework for Community-Based Natural Forest Management: The Tanzania Case, CIFOR Special Publication(CIFOR 1997).104 See Transitory Article 55 of the Political Constitution of Colombia, 1991. In 1993,Congress enacted Law 70/93, The Law of Black Communities, implementing the Transi-tory Article.

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covering 404 communities containing nearly 40,000 families and covering nearly2 million acres. In its later years, however, project implementation was seriouslydisrupted by the growing insurgency and violence in the region, and as a resultthere was no follow-on project.105

Forestry projects raise similar issues. Most forestland in Bank client countriesis owned by the State and administered by a forestry department, so there is oftenno legal framework for individual or community property rights in forestland.Alternatively, there may be a system of property rights different from those thatapply to farmland. It has been suggested that stronger property rights regimes areneeded for communities occupying forestland to create the security and incen-tives that promote good husbandry of the forest resource by these communitiesand their members.106 However, forestry departments cling resolutely to theircontrol of these resources. Commercial and other production on this forestland,legally or illegally, provides major income streams to forestry departments andtheir employees.

Where a property rights option has been available for local communities tosecure control of their natural resources, including forests, the Bank may seizethe opportunity, as in the Colombia project. Where a property option is not pres-ent, natural resource management projects (except for the Tanzania case ) havegenerally not sought to establish one through law reform. Instead they haveattempted to work with contractual solutions that involve agreement between theforestry department and a community or resource user group on a forest management plan.107 For example, the Lao PDR Forestry Management and Con-servation Project, 1994 (P004169), funded the launching of a pilot program forparticipatory management of production forests in sixty villages in twoprovinces. The Forestry Law of 1996 (Article 7) allowed for the organization ofvillage forestry associations, agreement between governments and associations

105 See a study documenting the land work under this project that gives considerable atten-tion to the legislative framework: Bettina Ng’weno, On Titling Collective Property, Participation, and Natural Resource Management: Implementing Indigenous and Afro-Colombian Demands: A Review of Bank Experience in Colombia (September 2000) avail-able at http://lnweb18.worldbank.org/External/lac/lac.nsf/0/d56de267ed9a073985256a320063a78d?OpenDocument.106 See John Bruce, Property Rights Issues in Common Property Regimes for Forestry, in1 World Bank Legal Review: Law and Justice for Development 257 (World Bank 2003);and John Bruce & Robin Mearns, Natural Resource Management and Land Policy inDeveloping Countries: Lessons Learned and New Challenges for the World Bank, IIEDIssue Paper No. 115 (International Institute for Environment and Development 2002). 107 The variety of contractual solutions used in Asia is reviewed by Owen J. Lynch &K. Talbott, Balancing Acts: Community-Based Forestry Management and National Lawin East Asia and the Pacific (World Resources Institute 1995).

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on ten-year management plans, and fifty-year management contracts between theState and associations for association use of state forest land, with sharing of rev-enues. Because the viability of the relationship depends on the ten-year plan, aspointed out by an evaluator, an association’s secure expectation concerning useof the land is effectively limited to ten years, despite the fifty-year term of thecontract. The sustainability of the program will depend on the decisions of theofficials of the day.108

Usually these agreements do not confer property rights, and they often fallshort of providing secure tenure. China and the Philippines have done better,using long-term leaseholds for community forestry management.109 A similarapproach is being pursued by the Bank-supported Vietnam Forest Sector Devel-opment Project, 2004 (P066051). Forest plantations (fast-growing trees, mixedplantations, and fruit trees) are to be established on state land (all land in Vietnambeing state land) with forty- to fifty-year Land Use Certificates, using a partici-patory approach involving village consultations, land allocation, and certifica-tion of land use rights.

In the arid pastures context, a context common in Bank client countries inAfrica and Asia, the Bank has faced similar issues of State land ownership anda reluctance to accord use rights to users or user communities.110 Progress is notalways easy. In Mongolia, through a Japan Social Development Fund (JSDF)grant and a Sustainable Livelihoods Project, 2002 (P067770), the Bank encour-aged the government to pursue a system of community-access commons, whichwere allowed under the 1994 Land Law. In an unfortunate regression, a 2003Land Law in effect returned pastureland to the status of an open accessresource.

Bank projects on natural resource management and forestry have not beenvery active in seeking property rights and titles for land users, though communi-ties may be as badly in need of these for their forests and pastures as individualsfor their residences and farms. Nor have these needs for tenure and title beenaddressed in Bank-funded land administration projects. These have avoidedtitling on forestland, given the lack of a legal framework for property rights there,rather than confronting that lack as a legal reform issue. There is in fact often aserious and unfortunate disconnect between the Bank’s work on land law reformand reform of the law relating to natural resource management, perhaps partly as

108 Paula Williams, Draft Evaluation Summary, Evaluation of Three Pilot Models for Participation Forest Management: Village Involvement in Production Forestry in LaoPDR (World Bank 2000).109 John Bruce, Legal Bases for the Management of Forest Resources as Common Property, 89–91 and 103–107 (FAO 1999).110 See Bruce & Mearns, supra n. 106.

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a result of the way the Bank organizes itself: The first falls under Agriculture andRural Development, the second under Environment, and two different thematicgroups of Bank staff deal with these issues.

2.12 Process and Style in Land Law Reform

Bank task managers do not usually set out on a project development mission withreform of the law relating to land in mind. Rather, they discover in the course ofscoping and pre-appraisal activities that it may be impossible to attain the objec-tives of the project without such reform. If clearly necessary, disbursement offunds or perhaps execution of the project may be made contingent upon thereforms. But because legal reforms are seen as time-consuming and unpre-dictable, task managers are reluctant to make projects conditional on legalchanges or rely on them for project success. Rather, they will try to find ways,which may be less than optimal, to achieve project objectives without reform. Theproject can then go forward and if law reform would clearly ease project imple-mentation or enhance project impacts, it can be folded into the project, usuallyinto a “policy development and legal framework” component. Studies may befunded and a process initiated to reconsider problematic elements in the law con-cerning land. Once the Bank is involved in pressing for law reform, however, ithas a legitimate interest in the process by which government seeks to accomplishit. The success of a reform initiative depends on how the project negotiates thedifficulties encountered in the process. It is therefore worth reviewing here someimportant issues of timing and process that regularly confront Bank clients andtask managers. These are legal issues. While the list is not exhaustive, the fol-lowing deal with some of the more common situations.

2.12.1 Getting the Timing Right

Bank task managers need to understand the procedures required to get laws andregulations enacted so that they can address the delay and other risks involved inlaw reform. The Bank’s country lawyers and legal consultants hired by the proj-ect help make these processes understandable. Managers must, for example, besensitive to election schedules and how they relate to the project cycle. In mostcountries no controversial legislation is likely to pass in the year before an elec-tion, or in the year following as a new government organizes itself. The appear-ance of a potential champion for land law reform in a key government positionmay create a window of opportunity that must be seized. Reformers in govern-ment, and those from the Bank who support them, must plan conservatively andavoid setting unrealistically short-term targets for legislation, as well as beingalert and flexible enough to respond when windows of opportunity open. As anytask manager is aware, this is a tall order.

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There are larger timing issues as well. Is it too early to make reform of the lawrelating to land a priority? New property rights or titling laws will not achievemuch of their potential impact on productivity unless product and credit marketsare functioning satisfactorily. Creating legal mortgageability of land, for exam-ple, is not much help unless there are viable credit markets and credit institutionswilling to lend against land. It has been suggested, based on the experience inAfrica,111 that pushing property rights reform too far out ahead of reforms inother sectors may not be productive.

The fact that in many developing countries market forces will be in very dif-ferent stages of evolution in different parts of the country complicates these timing issues. Urban and peri-urban or coastal areas will exhibit conditions verydifferent from those in interior and deep rural areas. One of the strengths of thesystematic title registration approach in the Bank’s land administration projectsis that it can be applied only in areas where the necessary preconditions for positive impacts exist.

A final timing issue involves establishing the appropriate relationship betweenreforms in land law and distributive decisions. Should a new property rights sys-tem be deployed early in transitional situations, in spite of inequities and even thealarming appropriations of land by the powerful that often occur in these fluid sit-uations? Or should it be held back until these distributional issues can beaddressed, in the meantime leaving smallholders without legal protections? Getting the necessary political support for property rights for some may requireproviding it for the others. This issue has been raised often in the context of legalreforms associated with land administration projects.

Carpe diem? Perhaps, but ultimately the decision to move ahead with lawreform is one for national counterparts. The economic urgency of land lawreform is a technical issue on which the Bank can provide good value to itsclients, as it can on the costs and benefits of potential reforms. By providingconsultants and drawing on the expertise of its own Legal Vice Presidency, itcan provide effective assistance in the actual drafting of laws. Task managers,however, will usually need to rely on colleagues in the cooperating nationalinstitution and on the Bank’s country office director and local staff for adviceon the political lay of the land and the political prospects of proposals forreform.

There are obviously no fail-safe strategies with regard to the timing of landlaw reform initiatives—only the lessons that timing is crucial and that sensitiv-ity to a variety of factors in recognizing and seizing opportunities for reform isessential.

111 See Bruce & Migot-Adholla, supra n. 50.

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2.12.2 Sequencing Policy Reform and Law Reform

The reform of land policy and law potentially involves several stages:

• Identification of problem areas• Policy discussions and public consultations• Preparation of a policy document and its endorsement by government• Assessments of existing law in relation to new policy directions• The drafting of the law itself• Approval of drafts by the cabinet• Public discussions of drafts• Finally, enactment into law by the legislature or the executive.

Most staff of the Bank would agree that the ideal process begins with a sys-tematic and thoughtful review of problems, proceeds through development ofpolicy, and culminates in law reform. In practice, often these are telescoped intoa land law preparation process in which fundamental land policy issues aredebated and resolved in the drafting committee. This is a poor process largelybecause participation is limited in terms of both disciplinary perspectives andstakeholder input. Experts from one discipline should never make land policyalone; their perspectives tend to be narrow and they often opt too readily for thesolutions their own disciplines provide.112 Failure to proceed systematically candraw fire from the press, politicians, and the NGO community.

Though most Bank staff understand this, they nonetheless find themselvessupporting less than ideal land law reform processes. They may be driven by theneed to make the loan within a reasonable time and not drag out the project devel-opment process indefinitely. Or they may be deferring to the advice of nationalchampions of reform, who may be more concerned with where they are goingthan how they will get there.

In 2002 the Government of Cambodia, with support from the Asian Develop-ment Bank and the World Bank, enacted a new Land Law. The law was seen asurgently needed to deal with extensive land grabbing and endemic land disputes.

112 Julio Faudez remarks:

[W]hen foreign legal experts assess the legal needs of developing countries theyalmost always seem to assume that the problems they have identified can beresolved by the enactment of new legal rules. While in some occasions this diag-nosis is correct, quite often it is not . . . In fact, it is often the case that new legalrules are not the best solution either because there is no agreement in society as tothe content of the rules or because the rules simply do not reach the groups that therules are meant to reach.

See Julio Faudez, Legal Reform in Developing and Transition Countries; Making HasteSlowly, in Comprehensive Legal and Judicial Development: Towards an Agenda for a Justand Equitable Society in the 21st Century 374 (Rudolf V. Van Puymbroeck, ed., WorldBank 2001).

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While the draft was not subject to broad public review as it was developed, it wassubject to intensive review and redrafting by key stakeholders. The broadcastingon national television of the lively, sometime contentious, parliamentary debateson the draft was a milestone in legal development in Cambodia. Only once theLand Law was in place was the Government willing to be drawn by the multilat-erals into a broad land policy development process.113

In the interest of rapid progress, Bank task managers and their counterparts mayseek to work as far down in the hierarchy of legislation as possible and will some-times stretch a point, taking advantage of a lack of rigor concerning the hierarchyin the national legal system to accomplish quickly in a regulation what shouldrightly be done in a law. Legal experts working with the project must sometimesmake difficult choices between “doing good law” and “making the project work.”

2.12.3 Public Participation and Consultation

The law relating to land affects the interests of a broader range of stakeholders thanmany other bodies of law and they should have the chance to articulate their needs.In recent years, local “Land NGOs” have helped give them voice. Public partici-pation and consultation are important not only to the quality of policy and law butalso to the prospects for implementation, and the Bank can often do a great dealto encourage adequate public consultation, if only by making funding available.The Bank has considerable experience in public consultation for projects.114

Broad public consultation works best at the land policy stage, but due to the“telescoping” already mentioned, there are often demands for public consultationon the law rather than the policy. A highly technical law will make this difficult.Brevity and simplicity in drafting, eschewing jargon and leaving details that mayneed adjustment to regulations, can greatly facilitate stakeholder input. Otherwise, the law can be summarized (and of course translated) for public discussion. In Cambodia a broad public debate ensued while the National Assem-

113 Land Law, promulgated as Royal Decree NS/RKM/0801/14, August 30, 2001. This lawcovers both property rights and land administration. Though not elegantly drafted, it isadequate and clear; more important, it is Cambodian and enjoys exceptional “ownership”among Cambodians, official and unofficial. This is reflected in the Government’s veryserious public education and implementation efforts. A new Civil Code drafted by JICATA for the Ministry of Justice is under consideration, and discussions are underway onalignment of the Land Law and the immovable property provisions of the draft Code. 114 See, for example, chapter 4 on Consultation and Disclosure in Kenneth M. Green &Alison Raphael, Third Environmental Assessment Review (FY 96-00), EnvironmentDepartment, 62–86 (World Bank 2002); and Shelton Davis & Nightingale Rukuba-Ngaiza, Meaningful Consultation in Environmental Assessment, Social DevelopmentNote 39 (World Bank 1998). The thinking about public consultation supported by theBank has focused on environmental and social assessments for project design, rather thanpolicy and law reform.

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bly was considering the draft, thanks to the commendable decision of governmentto broadcast the entire Assembly debate, lasting some weeks, on national televi-sion. Consultation after a law is drafted is thus not too late, but how it is done willdepend on the complexity and accessibility of the law.

It is easier to deal with some of these issues if it is recognized and accepted atthe outset that a major land law reform takes a number of years: Most practition-ers of land law reform would accept two years as fast and five years as more thenorm. Because the process is important to the ultimate success not just of enact-ment but also of effective implementation, the rewards of patience and persistencecan be large. This suggests that fundamental land law reform can best be handledin the context of policy lending or of an investment project that does not immedi-ately require the reforms and can afford to target enactment late in the life of theproject. Where the law is more technical and less political, such as a title registra-tion law, progress may be more rapid, and if regulations will meet the need, theycan sometimes be done within months and usually within a year, depending in parton whether regulations can be approved by the Minister concerned or, as in somecountries, must go to the Cabinet or the President for approval.

In Tanzania, the Bank in the 1990s was able to support the later stages of amuch more considered land-policy-to-land-law process. The Presidential Com-mission on Land Matters (the Shivji Commission) had used a broad and rigorouspublic consultation process effectively to substantiate the needs for wide-rangingreforms. The public consultations by that Commission should be consulted as anexample of best practice.115

2.12.4 Funding Technical Assistance for Law Reform:Commissions and Consultants

The Bank often supports law reform by funding studies of the existing legalframework, commonly by a commission of local experts though sometimes by anindividual legal consultant. Though these processes can be drawn out, they effec-tively mobilize local expertise. If there are policy directives, the study can provide indications of what laws need to be changed to achieve them. On the tech-nical side, one of the payoffs of a comprehensive study should be a rigorousreview of existing legislation that can support a solid repeals provision, specify-ing laws and sections of laws to be repealed, rather than depending exclusively ona boilerplate formulation, such as “Any provisions of law in conflict with this laware hereby repealed.” (Few who administer the law will have the expertise todetermine what other laws are affected, and to what extent.)

115 See Government of Tanzania, supra n. 101.

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The Bank also supports international consultants who work with a local draft-ing committee on new laws. Bank staff may suggest capable consultants and provide funds to hire them, if this can be done under national rules. (In somecountries, Ministry of Finance rules do not allow the use of loan funds for tech-nical assistance, and the task manager might then either use grant “trust funds”for this purpose or seek a partnership with a bilateral donor who can provide agrant.) If handled badly, this can result in the consultant drafting the law and thelocal drafting committee merely acting as a sounding board. This may produce amore elegant (though not a better) statute but can erode any sense of local own-ership of the law. Normally the local drafting committee should be in the driver’sseat and the consultant should come in periodically to review and comment ontheir work. The consultant can appropriately contribute to the outline for the lawby providing models of best practice and by suggesting modifications in draftsand even language for modifications. A local legal drafter should be used, withthe international consultant acting as an advisor. This will do a great deal to avoidunintended interactions with other laws, violation of local legal drafting conven-tions, and the confusion these mistakes can cause.

The selection of international legal consultants calls for close collaborationbetween the Bank’s task managers and staff of the Legal Vice Presidency. Often,indeed, the legal consultant for a project will actually be hired by a bilateral donorthat is partnering the Bank on the project where the country’s rules do not permituse of loan funds for technical assistance (TA).

2.12.5 Cutting Clothes to Fit the Cloth: Financial andHuman Resources as a Constraint

In many developing countries that came to independence in the 1960s and1970s—Africa provides many examples—the independence government’s suc-cession to the State’s “monopoly of law” was a heady experience that inspired ageneration of land laws that were never implemented. Most often, those govern-ments aspired to take over control of land allocation from traditional authorities,a task well beyond their financial and staff resources. This is less common today,but caution is still needed.

In Uganda, a new Land Act was enacted in 1998, in compliance with a man-date for a new land law in the 1995 Constitution.116 The World Bank had financeda joint program of studies by the Makerere Institute for Social Research and theLand Tenure Center of the University of Wisconsin–Madison that built animpressive consensus on fundamentals for a new law. While not involved in thedrafting of the bill, the Bank was supportive of its enactment. DFID providedtechnical assistance for the drafting.

116 See art. 237 of the Constitution of the Republic of Uganda, 1995.

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The Act provided for an admirable decentralization of land administration toDistrict Land Boards, with District Land Offices, and for a system of Land Tribunals. It became clear in the first year after enactment, however, thatlegislation of these structures did not mean that the Ministry of Finance had tofund them. Because funding only very gradually became available, this left alacuna in the area of land dispute resolution. The amendments that were requiredto bring the Act into line with the resources available were not made until six yearslater, in 2004, at the considerable cost of loss of momentum for implementation.

These problems are not confined to Africa. Unimplemented legislation is amajor issue in countries in transition, where legal reforms have been broad andrapid but the institutions needed to enforce new laws may be weak or lackingentirely.117

A better practice can be illustrated from the Bank’s Lesotho Agricultural Policy and Capacity Building Project, 1998 (P001402). There, DFID providedtechnical assistance for drafting of a new Land Law, but in this case the TA teaminvolved both economists and lawyers and, as the shape of the new law becameclear, they gave government a clear picture of the cost implications of optionsunder discussion.118

2.12.6 The Long and Short of It: Styles of Legislative Drafting119

Some dimensions of the drafting task are fairly straightforward. In a civil lawjurisdiction, basic property rights will be delineated in the Immovable Propertychapter of the civil code. There will then often be additional laws on specificareas of land law, for example land registration or condominiums or mortgages

117 Kathryn Hedley, Law and Development in Russia: A Misguided Enterprise? 90 Amer-ican Society of International Law Proceedings 237.17 (1996).118 Lala Steyn & Michael Aliber, Resources and Finances Required for the Implementa-tion of a New Land Act in Lesotho, Lesotho Land Policy and Law Harmonization andStrategic Plan Project, Agricultural Policy and Capacity Building Project (DFID June2003). The draft law is still under consideration at Cabinet level.119 Ann and Robert Seidman, with their collaborators, have produced a number of valuableresources for anyone who wishes to better understand the legislative drafting process andthe issues that arise in drafting for developing countries: Making Development Work: Leg-islative Reform for Institutional Transformation and Good Governance (Ann Seidman,Robert B. Seidman, & Thomas W. Wilde, eds., Kluwer Law International 1999); and AnnSeidman, Robert B. Seidman, & Nalin Abeyesekere, Legislative Drafting for DemocraticSocial Change; A Manual for Drafters (Kluwer Law International 2001). The Seidmanshave also written a thorough review of their experience in legal drafting with a UNDP proj-ect in China, in Ann Seidman & Robert B. Seidman, Drafting Legislation for Development:Lessons from a Chinese Project, 44 American Journal of Comparative Law 101 (1996).

62 Land Law Reform

that supplement the fundamental provisions of the code. In a civil code draftingtradition, even these supplementary laws will tend to be relatively succinct.

In common law jurisdictions, the situation is less uniform. There may not be a“land law” per se; case law is treated as the foundational law and only specificmatters are legislated upon. Alternatively, there may be land laws that combineproperty provisions with provisions on land administration. These are quite com-mon in countries where governments have rejected the received colonial law andsought to replace it through legislation.120 They may exist as well in some civillaw countries, as they do in Cambodia.121

In recent years there has been considerable discussion of the pros and cons ofbrevity in the drafting of land legislation. Conventional wisdom in both civil andcommon law countries is that economy and precision are primary virtues in leg-islative drafting. Key matters should be covered in the law and secondary mattersexpanded upon in regulations under the law or in administrative instructions.A rel-atively simple law will be more easily understood by all concerned; changes in mat-ters of detail, which may often be necessary, need not go back to the legislature forapproval if they are in regulations. In recent years, however, McAuslan has arguedthe contrary: that the increased complexity of a market economy requires longerlaws and laws that incorporate substantial amounts of administrative law to ensuretheir proper implementation and limit arbitrariness on the part of administrators.122

Another key issue in drafting has to do with borrowing from foreign statutes.Faundez warns against “reckless copying of foreign legal texts.”123 This is gener-ally good advice. It is an axiom of legal sociology that the same rule addressed torole-occupants in different contexts will often not produce the same result. On theother hand, the nature of a given drafting task may make a difference in whethercopying is “reckless.” For example, copying substantive legislation on propertyrights in land may be highly problematic, since attitudes toward land tend to beculturally embedded and are often the product of local histories. Wholesale bor-rowing of laws in such a case can produce charges of “legal colonialism,” withsome justification.124 But working from a foreign law or regulations to developfirst drafts of title registration statutes or regulations, which are quite technical,

120 I. Ajani & U. Mattei, Codifying Property Law in the Process of Transition: Some Sug-gestions from Comparative Law and Economics, 19 Hastings Int’l & Comp. L. Rev.,117–37 and 131–32 (1995).121 See supra n. 53.122 See McAuslan, supra n. 43, at 255–58, specifically 257. He cites, with approval, theNational Land Code of Malaysia, which has 501 sections and 11 schedules in 400 pages.123 See Faundez, supra n. 112, at 369–95.124 See T. W. Wade & J. L. Gunderson, Legislative Reform in Transition Economies: AShort-Cut to Social Market Economy Status, in Making Development Work (A. Seidman,R. B. Seidman & T. W. Wade, eds., Kluwer Law International 1999).

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is not such a bad idea—though care must always be taken to make adjustments tothe local social and economic context.125

2.13 New Frontiers: Into the Land Market

To date, the World Bank’s experience with land has been largely in the contextsof policy and legal reform and land titling. This may soon change dramatically.In 2004, in a review of eligible Bank expenditures, the Directors approved elim-ination of the prohibitions of land purchases contained in various OPs. Those OPshave now been amended.126

The Land Purchase Committee created to work with community-based landreform projects remains in place to approve project proposals for land purchases,and the committee is working with the Land Policy and Administration ThematicGroup to draft guidance for task managers and their teams. In that context, awhole range of new contexts for land purchases is being discussed, among them

• Purchases to accommodate those being voluntarily resettled, as in the caseof disaster management projects;

• Purchases to accommodate those being involuntarily resettled, for instanceby urban redevelopment or infrastructure projects;

• Purchases of land to add to protected areas, opening the way for land trustarrangements; and

• Purchases of land for urban renewal.

125 Legal transplants have sometimes been effective, as noted by Alan Watson, Aspects ofthe Reception of Law, 44(2) Am. J. Comp. L. 335 (1996). The impact of a specific legaltransplant in a country in transition is examined in Philip M. Nichols, The Viability ofTransplanted Law: Kazakhstani Reception of a Transplanted Foreign Investment Code, 18U. Pa. J. Int’l Econ. L. 1235 (1997). For the developing world in the civil law context,Rene David’s recounting of his work on a Civil Code for Ethiopia is a classic about athoughtful effort to take customary land tenure law into account: Rene David, A CivilCode for Ethiopia: Considerations on the Codification of the Civil Law in African Coun-tries, 37 Tul. L. Rev. 189 (1963).126 Disbursement OP 12.00 (February, 1997), which in para. 2(b) prohibited disbursementof Bank funds against land, has been replaced by OP 6.00 (April, 2004) on Bank Financ-ing, which contains no such prohibition. The Involuntary Resettlement OP 4.12 (April,2004) was amended at the same time to remove a parallel prohibition from para. 34 of theDecember 2001 text. Today, the only similar prohibition is in para. 7 in OP 7.40 on Dis-putes over Defaults on External Debt, Expropriation, and Breach of Contract (July 2001):“The Bank does not lend for the purpose of enabling a country to expropriate an enter-prise by providing the funds needed for compensation.” This is read as applying to “enter-prises” rather than land and, from the context in this OP, as applying only to takings ofproperties of aliens and only in the context of major expropriation events such as the SuezCanal seizure and the nationalization of the Iranian oil fields, events that prompted thepromulgation of this OP.

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Since the elimination of the prohibition on land purchases, the committee hasbeen approached about land purchases in a wide range of projects, includingcommunity-based land reform projects, a project for the promotion of transgen-erational land transfers (to place land in the hands of younger farmers), and infra-structure projects that involve the compulsory acquisition of land. The last pointis interesting: the Bank would normally have a preference for market acquisi-tions, where possible, but there is nothing in its policies or other rules that wouldpreclude use of Bank funds for a compulsory acquisition where this is the mostefficient way to obtain the land.

This new opening for land purchases by Bank projects has implications forBank work on the law relating to land. Land markets and the law governing landtransactions will no longer be the province of a small, specialized subset of Bankstaff dealing with land projects. Many more Bank operational staff will need togain experience with land transactions and markets, and that experience willhopefully feed back into land law reform thinking in helpful ways. As a partici-pant in land markets, the Bank may learn lessons that have escaped its attentionas an advocate of land markets.

2.14 Conclusion

The World Bank is making important contributions to reform of the laws con-cerning land in client countries, in both the area of property rights and the sphereof land administration. These legal reforms are made on the basis of an increas-ingly nuanced set of policy prescriptions and with greater flexibility as to formsof property in land and systems of land registration. It seems clear that muchfuture law reform sponsored by the Bank in this area will be developed thoughpolicy lending processes and, in the case of investment projects, during the imple-mentation of the project rather than at the outset. Focusing adequate legal expert-ise on these issues in the policy lending context is an important challenge. At thesame time, the range of projects affected by land law issues and that can poten-tially generate initiatives for legal reforms is growing. While land administrationhas been the front line for the Bank in land law reform, opportunities for land lawreform are posed in natural resource development projects and in a new genera-tion of projects that can now use Bank funds to purchase land.

In these circumstances, and given the pressures involved in project develop-ment, the important challenges for the Bank are:

• Provision of useful training opportunities for both legal and operationalBank staff in the reform of land law, including, in light of the new ability topurchase land with Bank funds, the law dealing with transactions in land

Reform of Land Law in the Context of World Bank Lending 65

• Ensuring that adequate legal advice is provided to task team leaders andclient governments in the context of both investment and development pol-icy lending, both through specialized legal staff within the Bank and exter-nal legal consultants

• Relying more on persuasion than on conditionality, which will require useof tools that create conviction of reform needs, such as policy research(free-standing and within projects) or programs that generate feedback onfelt needs for legal reforms, such as public consultation and legal assistanceprograms

• Finding space in the crowded project design and implementation timeframe for policy and law reform processes that involve broad public partic-ipation, create stronger local ownership of a new law, and provide for pub-lic education on new rights and responsibilities.

67

C H A P T E R 3

Overcoming Gender Biases in Established and Transitional Property Rights Systems

Renée Giovarelli*

3.1 Introduction

Rights to land are critical to economic development for women. In the develop-ing world, more than half of all women still work in agriculture. In India, 86 per-cent of rural women workers work in agriculture compared with 74 percent ofrural male workers. In addition, females head a large percentage of households:20 percent in Bangladesh and India and 30 percent in sub-Saharan Africa.1

Among the poor, women and women-headed households are most vulnerable andaccount for a growing majority of the extreme poor.2

Land rights that are taken for granted by men often do not exist for women.3

Women may either lose rights to land or not gain rights to land as a result of: (1) a

* Renée Giovarelli, a lawyer, is the principal of International Partners in Development inSeattle, Washington, U.S.A. She previously was Staff Attorney at the Rural DevelopmentInstitute (RDI) in Seattle, Washington. The views expressed in this chapter are the viewsof the author.1 United Nations Department of Economic & Social Affairs, 1999 World Survey on theRole of Women in Development: Globalization, Gender and Work 85 (United Nations1999) [hereafter the 1999 World Survey]. 2 International Land Coalition, Towards a Common Platform on Access to Land: The Catalyst to Reduce Rural Poverty and the Incentive for Sustainable Natural ResourceManagement 4 (ILC 2003), available at: http://www.landcoalition.org/pdf/CPe.pdf(report of the World Bank Regional Workshop on Land Issues in Asia, Phnom Penh, Cambodia, June 3–6, 2002). 3 In the Near East, for example, women rarely own arable land, although civil and religiouslaw permits them not only to own but also to buy and sell land. For example, in Jordan,women own 28.6 percent of the land; in the United Arab Emirates, 4.9 percent of land;and in Oman, 0.4 percent of land. In some regions of Egypt, 24 percent of landowners arewomen; in Morocco, 14.3 percent; and in Lebanon, 1 percent. Cyprus is an exception,with 51.4 percent of the land owned by women. Female holdings are generally smallerthan male holdings. See Food & Agriculture Organization of the United Nations, Women,Agriculture, and Rural Development: A Synthesis Report of the Near East Region (FAO1995), available at: http://www.fao.org/documents/show_cdr.asp?url_file=/docrep/X0176E/X0176E00.htm.

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cultural or legal inability to acquire land rights through markets, inheritance, trans-fer, or gift; (2) barriers to rights created by marriage, divorce, bride price anddowry, or polygamy; (3) privatization or individualization of land; or (4) failure toformalize women’s rights in titling programs. In many countries, while womenhave access to land through their husbands or fathers, they do not own land or haveownership-like rights to it. Cultural prohibitions against women’s ownership ofland are often more powerful than the written law allowing women to own land. Inother cases, customary law or cultural norms determine which rights to land awoman may freely exercise. For example, in sub-Saharan Africa, women may havea right to cultivate and dispose of a crop, but rarely do they have a right to allocateor alienate land, although their husbands and fathers can do so.4

In addition to cultural norms and customary law, women may have inferiorrights to land as a result of outright discriminatory policies at the central or locallevel, or because of poorly drafted regulations governing land and propertyrights. Since rights to land and property must be recognized both legally andsocially to be usable and enforceable, overcoming gender biases in propertyrights systems requires overcoming gender biases within the social and culturalcontext of those systems. Legislation alone cannot do this, though that is not tosay that legislation does not make a difference.

In the face of entrenched customary law and cultural norms, what is the valueof legislation that rejects such customs or norms?

Laws legitimize the possibility of change. While legislation does not itselfchange custom, it allows those who are brave enough or desperate enough ororganized enough to use the law to work to effect change. There are many exam-ples of the effect law can have on custom.5 In Uganda, women who were trainedabout land rights, including rights established by international protocols andtreaties, were pleased that their country had signed protocols and treaties agreeing to provide women with equal rights. These protocols did not have animmediate and binding affect on Ugandan legislation, but did give active womena specific platform from which to argue for change.

In the past, donor projects have sometimes contributed to gender biases by sup-porting those who are already advantaged by wealth, power, or custom, to the dis-advantage of those who are poor and vulnerable. Future donor projects must be

4 M. Kevane & L. C. Gray, A Woman’s Field Is Made at Night: Gendered Land Rights andNorms in Burkina Faso, 5(3) Feminist Economics 1, 2 (1999).5 In the Kyrgyz Republic, the Governor of the State of Osh Oblast passed an initiative toreduce expenses at festivities. Families were being economically stressed by the culturalrequirements for food and gifts for weddings and funerals. The initiative limited whatcould be offered in terms of number of sheep or horses slaughtered. This legal initiativegave the community a framework to agree on how many slaughtered animals would berespectful to the deceased without being a burden on the family.

Overcoming Gender Biases in Property Rights Systems 69

designed in a way that goes beyond “doing no harm” to women’s rights but ratheraffirmatively empowers women. In transitional economies, the introduction ofindividual rights to land and a land market necessarily changes the traditions andcustoms of a society to some extent. Part of this change should be an effort toempower the poor, the disadvantaged, and women through ownership rights toland and property. When women’s rights are explicitly taken into account and theyparticipate in the design of a policy, equity is increased. In many cases, increasedgender equality can also lead to increased economic equality.6 Certainly women’saccess to land is a major component of the success of agricultural sector policies.7

Reform policies must address gender biases by: (1) identifying the issues andtheir sources; (2) drafting legislation that creates property rights systems underwhich women and men have equal rights; and (3) accounting for the social andcultural factors and limitations in each setting that constrain women’s propertyrights and addressing them, as appropriate, through legislation or social and cultural programs.

The World Bank has initiated a review of the Bank’s land portfolio to assessthe impact Bank land programs have had on women. An initial review donebetween 2003 and 2004 determined the range of project experiences that incor-porated gender issues in World Bank projects related to land administration.8 Itwas the first stage of a larger study that continued with four in-depth projectimpact studies: the Ghana Urban II Project, 1999 (P000910); the Lao LandTitling Project, 1996 (P004208); the Azerbaijan Farm Privatization Project, 1997(P040544); and the Bolivia National Land Administration Project, 1995(P006197). The Bank’s land administration portfolio is young, in that only onereviewed project was started before 1990. This early review, it is hoped, will influence current and future land projects.

This chapter contributes to the Bank’s review of its own projects by setting outthe larger experience with these issues. The chapter (1) examines comparativeexamples that demonstrate unique constraints on women’s property rights to agri-cultural land within the context of the issues listed above; and (2) provides rec-ommendations based on these examples that should be factored into any futurenational reform policies or donor programs related to agricultural land to ensure

6 See generally, P. Moock, The Efficiency of Women as Farm Managers: Kenya, 58 Am. J.Agric. Econ. (December 1976); R. S. Meinzen-Dick, L. R. Brown, H. S. Feldstein & A. S.Quisumbing, Gender, Property Rights, and Natural Resources, 25(8) World Dev. 1303(1997). 7 M. Fong, Gender Analysis in Sector Wide Assistance in Agriculture Productivity inWomen Farmers: Enhancing Rights, Recognition and Productivity, 23 Development Economics and Policy 251 (P. Webb & K. Weinberger, eds., Peter Lang Publishing 2001). 8 Hild Rygnestad, Land Administration and Gender Issues Portfolio Review (prepared forthe World Bank Group 2004).

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that women’s rights are recognized and respected. The chapter is not a literaturereview. It relies primarily on material from four diverse countries where the RuralDevelopment Institute (RDI) has had recent involvement with these issues, refer-ring to other countries only to illustrate specific points.9 It addresses ideas forboth better policies and better project design.

The second part of the chapter considers gender issues in the context of pro-grams that create new rights to land, both through privatization of state land andchanges from customary to individual tenure. The third part reviews joint titlingand co-ownership provisions and the fourth part discusses women’s access andbarriers to the land market. The fifth part discusses how intrahousehold transac-tions, including divorce and inheritance, affect women. Gender biases occur inpractice and within both statutory and customary law, and this chapter addresseseach of these issues within each section. Recommendations for overcoming gender biases in land reform programs are offered in the last section.

3.2 Creating New Rights to Land

“New” land rights are created in two basic ways: (1) grants of rights by the Statethrough distribution to individuals or groups, or (2) individualization of custom-ary, communal tenure. However, “in the process of privatization and reducing thecomplex bundles of rights into a single unitary right, many women and marginalusers lose out.”10 Women can lose out in two primary ways: (1) they may lose userights or rights of occupation to the new owner; or (2) they may receive title butmay not have the resources to produce, and therefore lose their ownership rightsover time. This section will discuss how privatization and individualization programs affect women’s rights to land.

3.2.1 Privatization and Individualization of State Land

Privatization of land is generally undertaken to increase investment in and pro-ductivity of land, to encourage efficient use and allocation of land, and to empowerrecipients by providing them with a valuable asset. Government privatization ofstate land has occurred throughout the transitional economies of the former Soviet

9 The four countries are China, India, the Kyrgyz Republic, and Uganda. RDI has beenworking in China since 1987 and most recently advised the government on the drafting ofthe Rural Land Contracting Law with an eye not only to improving the land tenure secu-rity of all farmers but also ensuring that women’s land use rights are protected. Work inIndia has included field studies in several states on women’s land rights and recommen-dations on how to enhance women’s access and rights to land, especially in governmentland distribution programs. Similarly, in the Kyrgyz Republic and Uganda, RDI has conducted field research on women’s land rights and recommended changes to the landpolicies of both countries.10 See Meinzen-Dick et al., supra n. 6, at 5.

Overcoming Gender Biases in Property Rights Systems 71

Union and Eastern Europe. In China, while land has not been privatized, decol-lectivization of agriculture under the Household Responsibility System (HRS)reforms of the late 1970s and early 1980s resulted in the creation of household-based use rights to land. In India, many states have allocated to landless laborersland that was either state-owned or taken from large landowners.11

In privatization programs, legal title to land is distributed to the individual, thehousehold, or the head of household, depending on the country. Each of thesechoices affects women and their immediate and future rights to land.

3.2.1.1 Household Distribution of Land

Generally, land is distributed and titled to households when the unit of operationin the culture is the household and not the individual or when there is a concernabout fragmentation of land. In China and the Kyrgyz Republic, the householdis the unit of operation and the population-to-land ratio is quite high.12 A distri-bution to individuals would have created very small plots of land, which would inturn have created even more serious fragmentation problems.

While both China and the Kyrgyz Republic distributed land to families on aper capita basis, the individual’s rights within the family were not clearly defined,due at least partially to cultural norms, which do not emphasize individual own-ership rights. In both countries, distributing land to the household often meansthat the male head of household has greater actual rights to the land than his wifeor daughter, even though on its face the law does not discriminate against women.

In China, where land contracts are issued, they are issued in the name of thehead of household. Household members’ names may or may not be listed in thecontract, but no specific land parcel or parcels are attributed to individual mem-bers. In some villages in China, under the 1998 Land Management Law that pro-vides farmers with a thirty-year use right to land, young men receive more landon the assumption that they will bring a woman to their household; similarly,other communities do not give unmarried young women land because they will

11 See, for example, Robin Mearns, Access to Land in Rural India: Policy Issues andOptions, World Bank Working Paper No. 2123, 31 (World Bank 1999). 12 In China, average per capita land allocation was approximately 1.32 mu (approximately0.086 hectares) according to a national survey in 1999; see R. Prosterman, B.Schwarzwalder & J. Ye, Implementation of 30-Year Land Use Rights for Farmers UnderChina’s 1998 Land Management Law: An Analysis and Recommendations Based on a 17Province Survey, 9(3) Pac. Rim L. & Pol’y J. 507, 516 (2000). In the Kyrgyz Republic, percapita distribution was approximately 0.75 to 1.5 hectares in northern provinces and 0.1to 0.3 hectares in southern provinces; see R. Giovarelli, C. Aidarbekova, J. Duncan,K. Rasmussen & A. Tabyshalieva, Women’s Rights to Land in the Kyrgyz Republic 10(World Bank 2001).

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probably marry and leave their families within the thirty years.13 A 1,200-household survey in 60 villages in 2001 found that only 6 percent of womencould receive land rights in their husbands’ villages immediately after they mar-ried; 60 percent had to wait until a land reallocation in the village; and 24 percentwere never able to receive land14—in spite of the fact that in China the UnitedNations Development Programme (UNDP) estimates that women now constituteapproximately 80 percent of the agricultural work force and perform more than80 percent of the routine farm labor.15

Although land use rights in China were theoretically allocated to farm house-holds for a period of years, approximately 80 percent of Chinese villages adoptedthe practice of periodically readjusting landholdings in accordance with changesin household makeup as part of the HRS. As the system was originally imple-mented, any change in the number of members in a household, as by birth, death,or marriage, was to be followed by an immediate adjustment of the size of a family’s landholding. This system of immediate readjustment was hard to man-age. It was replaced in most villages by a system of reassessment and readjust-ment of the entire village every few years.16

Not all land readjustments were of the same magnitude. “Big” or comprehen-sive readjustments involved a change in the landholdings of all households in thevillage. In a big readjustment, all farmland in the village was given back to thecollective management and reallocated among village households so each house-hold received entirely different land. A “small” or partial readjustment consistedof adding to or taking from a household’s existing landholding when that house-hold’s size changed. Small readjustments could take place continually as house-hold sizes changed, or every few years to reflect changes that occurred in theintervening years. Under small readjustments, households that neither added norlost members continued to farm the same landholding.17

In most cases, these land readjustments ensured that women did not lose theirright to a share of household land upon marriage, since their husbands’ house-holds would be entitled to receive additional shares of village land upon their

13 Z. Li, Women’s Land Rights in Rural China: A Synthesis 6 (Working Paper for the FordFoundation 2002). See also Z. Li and J. Bruce, Gender, Landlessness and Equity in RuralChina, in Developmental Dilemmas: Land Reform and Institutional Change in China(Peter Ho, ed., Routledge 2005).14 See id. at 7.15 See id. at 3.16 R. Prosterman, T. Hanstad, B. Schwarzwalder & L. Ping, Legal and InstitutionalReforms in China’s Rural Land System (unpublished report 2001) (copy on file with RDI).See also Prosterman et al., supra n. 12, at 548.17 See Prosterman et al., supra n. 12, at 508.

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marrying into the households. However, even the practice of land readjustmentsdid not ensure that all women received land shares in their husbands’ villages.In fact, in a survey in Shanxi Province, 8.5 percent of women did not gainaccess through readjustment to land in the villages in which they were living.18

Women who were divorced were particularly vulnerable. By custom, they returnto their families, but their land shares may have already been readjusted awayfrom their families in that community, causing them to create land pressure ontheir parents or brothers. This does not mean that women do not have access toland; it does mean that they have less land security than men.19 The proportionof households surveyed that contained landless women ranged from 16 to23 percent.20

While women generally favored readjustments, it is important to recognizethat the practice of frequently readjusting landholdings has led to a significantoverall reduction in land tenure security on all farmland in China. Since house-holds cannot be certain when readjustments will occur, and households thatwill lose land as a result of readjustments cannot be certain which land they willlose, long-term investment in land has been greatly discouraged. In addition,many local officials have taken the opportunity of readjustments to take land outof production for economic development for their own personal gain, furthereroding farmers’ confidence in their land use rights.21

The Rural Land Contracting Law that went into effect on March 1, 2003, pro-tects contracted land rights from readjustments while allowing villages to reserveland to help populations newly added to the village. Women are also able to keepthe portion of the land belonging to their birth families that was allocated forthem, although as in the Kyrgyz Republic, according to interviews with womenfarmers, few women will exercise this right.22

In the Kyrgyz Republic, while the legal rules provided for individual rightswithin the family, there were no regulations allowing for division of the house-hold parcel for the first nine years after the land law was implemented. Nearly tenyears after the land reform began, clarifying legislation was finally passed to

18 L. Zhu & Z. Jiang, Gender Inequality in the Land Tenure System of China, in WomenFarmers, Enhancing Rights, Recognition and Productivity Women Farmers: EnhancingRights, Recognition and Productivity, 23 Development Economics and Policy 203, 206 (P. Webb & K. Weinberger, eds., Peter Lang Pub. 2001).19 See id. at 206.20 See id.21 See Prosterman et al., supra n. 12, at 513.22 Author’s unpublished field research. This law has not yet been fully implemented, andreadjustments are still occurring. Field research indicated that where land was scarcewomen did not favor the new law.

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allow individuals the right to the value of their portion of the land, though not todemarcate or partition it.23 In the Kyrgyz Republic, as in China, upon marriagewomen leave their households to join their husbands’ families. If a woman is toreceive the value of the land she leaves, the remaining co-owners of the land plotmust purchase the land from her.

The primary impetus for this rule was a concern about fragmentation of land,but cultural norms played an important role as well. Very few women request thevalue of their land when they leave their household to join their husbands’ house-holds because it would be shameful for them and their families if they were todo so.24

In both China and the Kyrgyz Republic, even when women were not disad-vantaged in the initial land distribution, problems occurred as populations grewand women left their families of origin to live in their husbands’ villages and ontheir husbands’ families’ land, as is the custom. When household rights to landare the legal unit, women generally have rights to land through their status eitheras daughters or as wives, especially if the custom is for a bride to live with herhusband’s family.

Two events create land pressures on families in the Kyrgyz Republic: daughters-in-law who join households and children who are born after land distribution.Both require that additional people be cared for without any provision of addi-tional land. With no access to credit, a very limited land market, and no ruralindustry, family economic well-being decreases with each new child or daughter-in-law. Women who return to their families after divorce, often bringing childrenwith them, create enormous land pressure on their families.25

In 1990, resettlement land in Zimbabwe was allocated to households as a unit,to some extent because the area for resettlement was limited. Data from 1997indicates that about 75 percent of the registered land owners were male, about20 percent of farms were held jointly, and less than 5 percent were owned bywomen alone, despite the fact that 80 percent of all household food security was

23 The Law on the Administration of Agricultural Land (2001) (Kyrgyz Republic).24 See Giovarelli et al., supra n. 12.25 See id. at 11. In the Kyrgyz Republic, the State retained ownership of 25 percent ofthe land during the privatization process. This land was set aside so that the State wouldhave some ability to correct errors made during the privatization process and therewould be room for expansion of rural settlements. For a time, some villages used theland to assist families with children born after the distribution of land and families whohad received a daughter-in-law. Now rent from the land supports local government, andsome is also distributed to those who did not receive land under the initial distribution.Women rarely receive land from the land fund any more; see M. Childress, R. Giovarelli, R. Shimarov & K. Tilekeyev, Rapid Appraisal of Land Reform in the KyrgyzRepublic 22 (USAID 2003).

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generated by women.26 However, in some respects women felt that they gainedincreased access to land during resettlement because at least they had movedaway from their husbands’ extended families.27

3.2.1.2 Individual Titling of Land

Unfortunately, the imbalance of male and female ownership of land cannot nec-essarily be overcome just by individually titling land to women. Even when landis individually titled to women within their families, over time land may shiftback to male control because women often do not have the ability to efficientlyproduce on their land. The Tigrean People’s Liberation Front (TPLF) during itsliberation movement in Ethiopia carried out land reform between 1975 and 1989in Tigray, a contested area. While Tigray was under TPLF military control in early1980, the TPLF developed a land distribution plan: All land became public prop-erty and was equitably distributed among all males above 22 years of age andfemales above 15 years of age who were residing in Tabia (the smallest adminis-trative unit).28 All use rights over land were given to individual members of thehousehold, not to the household as a whole.29 Children at the time had a right toa share of land, but children born after the distribution did not. Later studiesfound, however, that it is not land but oxen ownership that is the best measure ofwomen’s success as farmers. Thus, although women in Tigray became owners ofland as a result of the land distribution, in most of the study areas, land shiftedthrough tenancy from women-headed households to those capable of farmingwith traction power, oxen, or labor.30 Both cultural taboos and a lack of resourcesimpeded women’s ability to farm using livestock, which primarily affected own-ership of land held by female-headed households.

In Karnataka State, India, women have the legal right to a land title, but gov-ernment programs that redistributed land generally distributed it to the male headof household. There was some indication from field research that if government

26 M. Mushunje, Women’s Land Rights in Zimbabwe, Report of Land Tenure Center 11(U. Wisconsin–Madison 2001), available at: http://66.102.7.104/search?q=cache:9GUYz97RvSoJ:www.wisc.edu/ltc/live/bassaf0106a.pdf+mushunje+%22women%27s+land+rights+in+zimbabwe%22&hl=en. 27 K. Izumi, Liberalisation, Gender, and the Land Question in Sub-Saharan Africa inWomen, Land, and Agriculture 9, 14 (C. Sweetman, ed., Oxfam 1999). 28 M. Berhane & M. Haile, Impacts of the Allocation of Land to Women in Tigray Underthe TPLF’s Land Reform Preface (unpublished research paper, Institute of DevelopmentResearch [IDR], Addis Ababa University, Mekelle University College 1999) (copy on filewith author).29 See id. at 14. 30 See id. at 23.

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grants of land were only given to women, men would be more willing to have landtitled in women’s names; otherwise, titles were always in men’s names.31

Individual titles to land have been more successful in societies where womenhave cultural and societal rights to own land, as in Bulgaria or Russia. State landwas distributed to individuals in Russia; in Bulgaria land was restituted to therightful heirs to the land, regardless of gender or household status. In both cases,women are able to exercise full ownership rights because, in addition to the legalright to land, they have a socially accepted right to the land distributed to them.32

3.2.1.3 Titling Land to Heads of Households Only

In other instances, even when the law is not discriminatory, government schemeshave titled land solely in the name of the male head of household. Rural house-holds throughout India have gained ownership of land through government landallocation schemes. Since Independence in 1947, many Indian states have soughtto improve both productivity and the equity of land distribution though variousland reform measures. In Karnataka State, these measures have included grant-ing permanent occupancy and ownership rights to tenants, redistributing landfrom owners whose holdings exceeded the ceiling limit to the landless poor, andregularizing encroachments of landless or small farmers onto government land.Karnataka has been praised among Indian states for the success of its land reformefforts,33 but women were not targeted beneficiaries under these reforms andtitles to land were almost exclusively granted in the name of the male head ofhousehold.

Karnataka has also taken up various housing schemes, which generally grantsmall houses and sometimes house plots to those without homes or with sub-standard housing. The schemes have made a largely unsuccessful effort to targetwomen. While a policy rule states that houses or house plots must be granted inthe name of the women individually or jointly with their husbands, local officialsare easily dissuaded from doing so and make little effort to enforce the rule.34

In the case of Karnataka, women generally do not own land. Women living inhouseholds that own land often have access to it but rarely have legal rights to it.In interviews in Karnataka, many women stated that they had never heard of awoman holding land in her own name. Even so, the great majority of women

31 J. Brown, K. Ananthupur & R. Giovarelli, Women’s Access and Rights to Land in Karnataka, India, 114 Reports on Foreign Aid and Development 12 (RDI 2002).32 R. Giovarelli & E. Eilor, Land Sector Analysis: Gender/Family Issues and Land RightsStudy (unpublished report, Govt. Uganda 2002) (copy on file with RDI).33 A. Aziz & S. Krishna, Land Reforms in India: Karnataka Promises Kept and Missed(Sage Pub. 1997). 34 See Brown et al., supra n. 31, at 12.

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stated that owning land was beneficial for women. The most commonly citedbenefits were security in case of separation, desertion, or widowhood; an inde-pendent source of income; and greater power within the household.35

Under all three options—household titling, individual titling, and titling tomale heads of households only—women did not necessarily gain equal rights toland; the unequal outcome was related to cultural practices and biases, lack ofinformation, and lack of enforcement of legal rules. Legislative interventionalone cannot give women the effective right to own and control their own land ifwomen’s land ownership is not accepted and enforced culturally and socially.While distributing individual titles to land may provide the most legal protectionfor women, women heads of households may also need additional support.Women must have access to credit and to legal, technical, and market informa-tion, and they must be able to realize their rights to land through the courts or acommunity dispute resolution system.

When women have access to dispute resolution, they can often claim theirlegal rights. For example, in the Kyrgyz Republic, a SWISSAID- and USAID-funded legal aid project helps women resolve property disputes when they aredivorcing. One client divorced her husband in 1999, having lived with him in anunregistered marriage. Their daughter stayed with her mother after the divorce.The client and her daughter—as well as other members of the family—receivedland shares when land was privatized, as was certified in a land certificate issuedto her husband as the head of household. Her former husband refused to give upthe client’s share of the land. After the legal aid lawyers met with her husband andcontacted the surveying and registration office, the land was split between themand her land was registered in her name. Her knowledge of her rights, and out-side support for those rights, enabled her to realize them.36

3.2.2 Individualization of Communal Land

Individualization of land that has customarily been communal has become themajor objective of land reform in many African countries where economic adjust-ment policies encourage market forces to determine the efficient allocation ofland.37 However, land reform programs alone are not leading to greater individu-alization, although they may accelerate this trend. In many cases, the State isreplacing community-based institutions as both the source and the arbiter of

35 See id. at 13.36 Swiss Helvetas/USAID Legal Assistance to Rural Citizens (LARC) (unpublished proj-ect report), available at: http://www.helvetas.kg/Files/Reports/LARC/YR_LARC_2004_E.pdf. 37 See Izumi, supra n. 27, at 9.

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rights, although some recent laws have tried to reverse this trend (Uganda andTanzania). The notion that individualization of land is necessary for investmentin communal land has been challenged by studies that found that customary com-munal tenure has a strong positive impact on investment as well as land values.38

The question arises: is individualization of communal land beneficial towomen? Certainly, individualization has not resulted in a great increase inwomen’s ability to own and control land. In fact, formal ownership of land andproperty has in general strengthened the control of already powerful groups andhas rendered women’s rights and access to resources less secure. In many cases ithas led to loss of land.39

In precolonial Kenya, for example, women had significant access to and con-trol over the use of land for subsistence agriculture.40 Women “bargained” withtheir husbands and fathers within the context of mutual obligations and responsi-bilities.41 Land was abundant and neither women nor men could alienate it. Whenthe British introduced private ownership of land, much of the power and controlover land, even under customary tenure, was vested in powerful chiefs (men).English legal norms of ownership did not take into account that male communitymembers were obliged to provide women with temporary usufruct and that formalregistration of only ownership rights would deprive women of this access.42

In most of Africa, men generally determine user rights for women and chil-dren. The community allocates land to male household heads and that land ispassed down to male heirs.43 Married women generally have use or cultivationrights to the land of their husbands, although difficulties arise when there is adivorce or separation.44 Access, acquisition, holding, and use are subject to thesuperior right of the family, group, clan, or community. Generally there are bothcommunal and individual rights and claims within communal systems.

38 K. Deininger & G. Feder, Land Institutions and Land Markets, World Bank PolicyResearch Working Paper No. 2014, 9 (World Bank 1998). 39 See 1999 World Survey, supra n. 1, at 90; see also S. Lastarria-Cornheil, Impact of Privatization on Gender and Property Rights in Africa, 25(8) World Dev. 1317 (1997); J.Dey-Abbas, Gender Asymmetries in Intrahousehold Resource Allocation in Sub-SaharanAfrica: Some Policy Implications for Land and Labor Productivity in IntrahouseholdResource Allocation in Developing Countries: Models, Methods, and Policy 249–62 (L. Hadaad, J. Hoddinott & H. Alderman, eds., Johns Hopkins U. Press for Intl. Food Policy Res. Inst. 1992). 40 G. Gopal, Gender-Related Legal Reform and Access to Economic Resources in EasternAfrica, World Bank Discussion Paper No. 405, 10 (World Bank 1999). 41 See id. at 11.42 See id.43 See Lastarria-Cornheil, supra n. 39, at 1322.44 See id. at 1321.

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As land has become more valuable due to cash cropping and an increase inpopulation, women can now lose their rights to land when a family breaks down.This may occur even in communal systems of land ownership. For example, inTanzania, widowed women who had previously been allowed to stay on their husbands’ land are now being dispossessed as that land increases in value.45

When land is individualized and made into a commodity, women may respond bynot improving the value of the land for fear of losing it to a husband or male rel-ative. There are cases in sub-Saharan Africa where women have lost control overland when they introduced irrigation and other improvements.46

Legislation that has not been gender-neutral but has encouraged joint titling ofland to husbands and wives to ensure women’s rights to land during the individ-ualization process has been contentious in some cases. In Tanzania, the LandCommission drafted a provision requiring joint ownership of land betweenspouses, but the principle was deleted from the final land policy of 1995.47 InUganda, drafts of the Land Act of 1998 included a provision for co-ownership ofland by married spouses. Parliament had agreed that customary land on which thefamily lived or depended for sustenance should be held in co-ownership, but thisprovision did not make it into the final version of the Land Act.48

During the transition process, when communal land rights are individualizedit is important to ensure that legislation is in place that at a minimum providesthat in a marital relationship, co-ownership of land and property is presumed.However, it is clear that this legal step is enormous; in many cases it will not havethe acceptance of the community and will therefore not be followed. Educationof policymakers and local customary leaders as to the economic value of womenhaving secured rights to land should be a prerequisite of donor-funded registra-tion projects. Women will also need access to some form of dispute resolution iftheir tentative rights are impeded.

3.3 Creating Secure Rights through Titling Projects

The focus of many donor projects is development of a land market to increaseeconomic benefit to those who own land. In economic terms, land markets are away to place the power over allocation of land in the hands of those most knowl-edgeable about the land and with the most vested interest in effective allocation

45 See Izumi, supra n. 27, at 13. 46 See 1999 World Survey, supra n. 1, at 91–92. 47 See Izumi, supra n. 27, at 12. 48 See Giovarelli & Eilor, supra n. 32, at 29.

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of that land. Some donor projects see titling of land as a way to spur economicdevelopment through: (1) prompting investment; (2) increasing opportunities forcredit; and (3) creating an active land market.49

However, these benefits of titling may not be afforded to women if they do notshare formal rights in the land. While in many cases women have access to land,they do not have title. Rights to land imply security that is tied to an enforceableclaim, while access to land is more informal and less enforceable.50

Bina Agarwal argues that formal land rights for women have an impact onwomen’s welfare, efficiency, equality, and empowerment.51 Specifically, sheargues that because women spend their incomes differently from men and moregenerally are responsible for improving the nutritional well-being of their chil-dren, a woman’s right to and control over land can determine her income-generating ability and therefore the well-being of her family.52

Comparative analysis of data from Nicaragua and Honduras suggests a posi-tive correlation between women’s formal property rights and their role in thehousehold economy in terms of greater control over agricultural income, highershares of business and labor market earnings, and the ability to receive creditmore frequently.53

In addition, formal title to land may have an impact on women’s sense ofempowerment. Intrahousehold economic theory suggests that the strength ofspouses’ “fallback positions” is an important determinant of their ability to shapehousehold preferences and resource allocation decisions.54 Focus group interviewsin Uganda, the Kyrgyz Republic, and India indicated that one of the key values towomen of formal title to land was that they were less vulnerable to divorce or aban-donment and in some cases less likely to suffer violence from their husbands.

However, as discussed above, titling of land may grant very limited rights towomen within a particular social and customary context and much greater rightsto men. While providing women with titles to land may not always have theintended economic effect, if titling does occur in a country, at a minimum joint

49 See generally chapter 5 in this book.50 C. D. Deere & M. León, Empowering Women, Land and Property Rights in Latin America 3 (U. Pitt. Press 2001). 51 Bina Agarwal, A Field of One’s Own: Gender and Land Rights in South Asia 31 (Camb.U. Press 1994). 52 See Deere & León, supra n. 50, at 11–12, discussing Bina Agarwal, id. at 31. 53 E. Katz & J. S. Chamorro, Gender, Land Rights, and the Household Economy in RuralNicaragua and Honduras (USAID BASIS/CRSP 2002).54 See Agarwal, supra n. 51, at 54. See also M. Carter & E. Katz, Separate Spheres andthe Conjugal Contract: Understanding the Impact of Gender-Based Development inHadaad et al., eds., supra n. 39, at 97.

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titling should be encouraged or even mandated for monogamous couples livingtogether either in marriage or in a consensual union. Joint titling of land may atleast improve the likelihood that a woman’s rights to land will be more securebecause she will need to give permission for sale or mortgage of the land. In Indiaand in Uganda, women saw joint titling as a way to stop their land from being soldwithout their knowledge—a common practice of husbands.55 However, for jointtitling to be effective, women have to know and be able to exercise their rights tojoint ownership.

There are several things to be considered in relation to joint titling of land.First, in voluntary programs, women are often not aware of their right to havetheir land jointly titled. Second, local governments and registration offices mayimpede families from registering both the man and the woman. Third, womenwho live in consensual union with a man but are not legally married may not havethe right to joint title to their land.

A study looking at six land-titling projects in Latin America found that in Honduras, where joint titling was voluntary, only 16.7 percent of titles issuedwent to women. The joint titling program was weak in that women were rarelyaware of their rights under the program, and the titling of land to women variedacross the country according to the willingness of regional functionaries tojointly title land.56 The application form did not provide a space for the applicantto list marital status or the name of his partner. If the partners were not married,they had to be registered as living in “consensual union,” which was both costlyand time-consuming.57 Mandatory joint titling was approved in 2000.58

In the Lao People’s Democratic Republic (Lao PDR), women from most eth-nic groups benefit from a tradition of matrilineal inheritance, and the family lawstates that land purchased during marriage is regarded as joint property.59 How-ever, in practice, women’s rights to land were not always recognized and there hadbeen gender bias in titling land to men only. However, once training related towomen’s rights to land titles was provided to the staff of the Department of Landand to women in communities, the number of titles in the name of women and thenumber of joint titles both increased.60

In Indonesia, formal law and customary law both recognize that husband andwife are co-owners of land acquired during marriage, yet marital property is

55 See Brown et al., supra n. 31, at 13; Giovarelli & Eilor, supra n. 32, at 22.56 See Deere & León, supra n. 50, at 295.57 See id. at 298.58 See id.59 World Bank, Agricultural Investment Sourcebook 411–12 (World Bank 2004),http://www-esd.worldbank.org/ais.60 See id. at 412.

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almost always titled in the name of the husband. The primary concern is that mostlandowners are not aware that land can be jointly titled. Application forms do notindicate that land can be registered in more than one name. The registration lawand accompanying regulations are silent on the issue and some registration officials were not certain that land could be titled jointly.61

3.3.1 Consensual Unions

Many rural women are not legally married, especially where customs and tradi-tions predominate.62 Legal marriage can be expensive and time-consuming andmay require residence documentation that women do not have. Field research inthe Kyrgyz Republic, for example, found that once the Soviet Union collapsedand legal marriage was no longer required or enforced, a majority of women inrural areas did not legally marry, although they participated in a religious cere-mony.63 In many jurisdictions, protection for women’s property rights through co-ownership or joint ownership are only enforced if legal marriage can be proven.A specific legal provision that consensual unions will trigger legal protection ofproperty rights acquired during the union (often the default marital regime) willenable many rural women to enforce their property rights who would not other-wise be able to do so.

The issue of what to do with people living in consensual union but not legallymarried has been taken up in many Latin American countries.64 For example, inPeru and in Ecuador, people who live together are declared to be coproperty own-ers, as distinct from joint property owners. The distinction is that their marital sta-tus is not important because they both own a separate share of the property ratherthan owning the property together as a whole. Generally, any two people can beco-owners, and married people can also be joint owners. Co-owners can act inde-pendently on their share of the property, while joint owners must agree to anaction on the whole of the property. Joint ownership requires the permission ofboth owners before a sale or mortgage can occur. In Colombia, co-ownershipdoes not have to be proved, only stated as true.65 While joint ownership may

61 S. Lastarria-Cornheil, S. Agurto, J. Brown & S. E. Rosales, Joint Titling in Nicaragua,Indonesia, and Honduras: Rapid Appraisal Synthesis 4–5 (Land Tenure Center, U. Wisconsin–Madison 2003). 62 For example, in the Cajamarca region of Peru over 60 percent of couples live in a con-sensual union. See Deere & León, supra n. 50, at 306.63 See generally R. Giovarelli et al., supra n. 12, at 20. 64 See generally, C. D. Deere & M. León, Who Owns the Land? Gender and Land-TitlingProgrammes in Latin America, 1(3) J. Agrarian Change 440 (2001).65 See id. at 458.

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afford greater protection than co-ownership, co-ownership provisions for con-sensual unions are a step in the right direction.

The Philippines has enacted a law that went even further than co-ownership forconsensual unions.66 The law states that property acquired in unions with or with-out marriage is covered under the national co-ownership and joint ownershiplaws, and the presumption is that if two people live together their land is jointlyowned.67 Even if a woman does not participate in the acquisition of property, sheis deemed to have contributed jointly if she cared for and maintained the familyand household.68

3.3.2 Joint Titling v. Co-Ownership Provisions

For legally married couples, some countries do not mandate joint titling of landand property but do provide in the civil code or other legislation for commonownership of property. Generally, common ownership provisions state that landearned or received by spouses during their marriage will be considered their com-mon property, whether or not it is registered as such. Property that belonged to aspouse before marriage or property acquired as a gift or inherited during mar-riage constitutes separate property.69

66 Family Code of the Philippines (Executive Order No. 209, July 6, 1987, as amended byExecutive Order No. 227, July 17, 1987), arts. 147–48.

Article 147: When a man and a woman who are capacitated to marry each other,live exclusively with each other as husband and wife without the benefit of mar-riage or under a void marriage, their wages and salaries shall be owned by themin equal shares and the property acquired by both of them through their work orindustry shall be governed by the rules on co-ownership. In the absence of proofto the contrary, properties acquired while they lived together shall be presumedto have been obtained by their joint efforts, work or industry, and shall be ownedby them in equal shares. For purposes of this Article, a party who did not par-ticipate in the acquisition by the other party of any property shall be deemed tohave contributed jointly in the acquisition thereof if the former’s efforts consistedin the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share inthe property acquired during cohabitation and owned in common, without the con-sent of the other, until after the termination of their cohabitation.

67 M. Judd & J. Dulnuan, Women’s Legal and Customary Access to Land in the Philippines12 (World Bank 2001). 68 See id.69 R. Giovarelli, Women and Land in Legal Impediments to Effective Rural Land Relationsin Eastern Europe and Central Asia, World Bank Technical Paper No. 436, 253 and 260(R. Prosterman & T. Hanstad, eds., World Bank 1999).

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However, a provision in the civil code or marriage code allowing commonownership of land should not be thought to obviate the need for a requirement forjoint titling in the registration legislation. Once land is registered as jointlyowned, the woman’s rights to the land are clear to all. With common ownershipprovisions, however, land can be registered in the name of the male only and ifownership were contested, a court or other body would have to decide whether thespouse has a right to a portion of the land under the law. Moreover, common own-ership provisions are subject to customary and traditional interpretations of inter-household ownership.

While there is a common ownership provision in the Kyrgyz Civil Code, itdoes not take into account customary law, which considers the marital house andland as the premortem inheritance of sons.70 Given this custom, the judicial inter-pretation of the law is that the house and land are the separate property of maleheads of household. Therefore, if the intent of the couple or the law is that womenand men will share the marital property equally in case of divorce, women are ina much better legal position if their land is registered as jointly owned.

3.4 Markets

Initial privatization of land is one way for women to receive individual rights toland. Once privatization is completed, however, women may acquire land rightsthrough purchase, inheritance, labor, or other investment in improving theresource, adverse possession, prescription, or leasing. This section will look atwomen’s involvement in market purchases and donor programs that seek to facil-itate the market for them.

Before looking at postprivatization markets, however, a note about market-assisted or “community-based” land reform: Recently, some traditionalapproaches to privatization have been modified to reflect new thinking aboutmarket-assisted land reform, also known as community-based land reform,which attempts to get land to the poor through market mechanisms.71 Generally,community-based land reform makes money available to the poor to purchaseland so as to counteract the land and credit market shortcomings.

Because experience with these programs is limited, best practices have not yetbeen established and information has not yet been disaggregated by gender.72

Where households, as opposed to individuals, are provided grants to acquire landthrough voluntary negotiations (in Brazil, for example), the issues discussed

70 See Giovarelli et al., supra n. 12, at 14.71 See Deininger & Feder, supra n. 38, at 27.72 World Bank, Land Policy and Administration, Module IX: Land Administration, Policy,and Markets-Overview (World Bank 2003).

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above related to household distribution of land would apply: generally in a patri-archal society, when land is distributed to households, the male head of house-hold has more actual rights to it than the female family members, especially if thefamily unit breaks down.73

Two other issues related to gender bias should be monitored in community-based land reform programs:

First, are women able to effectively participate as community members? Community organizations, NGOs, or other implementing agencies help benefi-ciaries identify land available, negotiate a price, reach a preliminary agreementwith the seller, and submit a proposal for approval to a local coordinating entity(for example, the district municipality or development committee). Are womeninvolved in these community organizations or NGOs? Are women’s NGOsincluded? What cultural or informal rules might limit women’s involvement inthis process? How can these be overcome?

Second, what are the cultural or traditional biases against women owning orpurchasing land? How do these affect women’s rights to land, and what might bedone to improve women’s access? Cultural bias against women’s participation ina land market is discussed in more detail below.

3.4.1 Existing Formal and Informal Markets

While informal and formal land markets are critical to economic growth and effi-cient use of land, the customs and attitudes of society toward the purchase andsale of land by women can have a significant effect on their involvement in theland market.

In Uganda and other parts of Africa, village men in particular are oftenopposed to women purchasing land during marriage because they see it as anindication that they want a divorce. Only when men are educated about the eco-nomic benefit possible if their wives purchase land do they allow their wives todo so in some instances.74

In a 100-person household survey in Uganda (see Table 3–1) there was a differ-ence in attitude toward the rights of women to purchase land depending on the mar-ital status of the woman.75 Fewer men (46.5 percent of respondents) and women(69.5 percent of respondents) thought married women should have the right to pur-chase land than thought widows or single women should be able to do so.

73 See generally M. Fafchamps & A. Quisumbing, Control and Ownership of Assets WithinRural Ethiopian Households, Food Consumption & Nutrition Division Discussion PaperNo. 120 (Intl. Food Policy Res. Inst. 2001). 74 See Giovarelli & Eilor, supra n. 32, at 34.75 See id. at 26.

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In Mpigi district, a peri-urban area in Uganda, women interviewed in onehousehold survey stated that, although women can acquire freehold land wher-ever it is available and most women want to own their own land, the deciding fac-tors for them are usually availability of money to purchase land and the attitudesof others. Women rarely have control over any of their own money. Fear of socialpressure from their husbands and male community leaders has also led somewomen to buy land and register it in the names of either their children or male relatives.76

In the State of Karnataka in India, like all other Indian citizens women havethe legal right to own land. However, due to their lack of independent financialresources and to traditional gender roles, women rarely purchase land, eitherindependently or jointly with their husbands, and household land is most com-monly titled only in the name of the male head of household.77 In Chile, becausewomen participated in the land market only when they had resources at their disposal, only 8 percent of women had acquired their farms through purchasecompared to 25 percent of the men.78

Since land ownership is economically empowering for women, women’s landownership can be threatening to men or to the societal value of the family as aunit. For example, under Muslim personal law in the Philippines, a woman musthave her husband’s consent to acquire any property by gift, except from her relatives.79

TABLE 3–1

Attitudes Toward Female Ownership of Land

Men’sAttitudes Women’sAttitudesFemale Marital Toward Female Toward FemaleStatus Ownership Ownership

Widows 68.2% 98.2%

Single women 67.4% 96.5%

Married women 46.5% 69.5%

Source: R. Giovarelli & E. Eilor, Land Sector Analysis: Gender/Family Issues and LandRights Study (unpublished report, Govt. Uganda 2002).

76 See id. at 19.77 See Brown et al., supra n. 31, at 1578 See Deere & León, supra n. 50, at 315.79 See Judd & Dulnua, supra n. 67, at 29.

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In many countries, it may be easier for women to lease than to purchase land,and land market programs should not focus exclusively on ownership. Leasingland is less psychologically threatening than purchasing it and requires fewerresources for entry. Of course, it should be noted that leasing is less psycholog-ically threatening for the very reason that it does not create long-term secureproperty rights in the borrower/lessee. In Burkina Faso, for example, theincreased and changing market value of land has had the surprising effect ofcreating avenues outside of traditional channels for women to lease land long-term, anonymously.80 Male landholders who have excess land are more willingto lease to them because women cannot claim permanent rights to land. Husbands generally support this borrowing of land by their wives, and womenare therefore better able to cultivate land independently, even though they do notown it.81

3.4.2 Land Market Liberalization

For women to be benefactors of programs that encourage their participation inland markets, an explicit policy favoring their participation is usually needed.Otherwise, women are unlikely to have the resources to purchase land because inmany traditional societies men have primary control over resources. The ruralpoor are often unable to take advantage of the market because they lack threeessential ingredients: (1) information about new laws and programs; (2) moneyto purchase land; and (3) access to credit.82

Women may have limited access to money, credit, and information because ofboth poverty and their status in the family and culture. Traditional expectationsabout their role in society can be a serious impediment to their entry into the landmarket.83 Women who are able to purchase agricultural land usually live in urbanareas and are employed or in peri-urban areas where they grow food for the urbanmarket.84 In both cases, they are able to accumulate their own resources. Womentraders do participate actively in urban real estate markets in some countries,including much of West Africa.

Land market liberalization is facilitated by land registration, but as this chap-ter has discussed, women are often not registered as land owners within a family

80 See Kevane & Gray, supra n. 4, at 14.81 See id. at 14.82 See the 1999 World Survey, supra n. 1, at 92. 83 See id.84 See id.; see also Lastarria-Cornheil, supra n. 39, at 1329.

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unit. Without a registered right to land, women cannot use the land as collateraland their approval may not even be required for a land transaction initiated bytheir husbands.

Women may be more likely to purchase land collectively: Pooled resourcescan make it easier for women to acquire credit using social collateral or to pur-chase land outright. One NGO in Andhra Pradesh in South India used govern-ment poverty alleviation schemes, which granted money or land to the landless,to collectively acquire land through purchase or lease. The purchased land wasdivided into individual plots for the group members but then cultivated collec-tively to take advantage of the group’s pooled resources.85 Other examples ofwomen acting jointly to overcome their disadvantage in the market can be foundin other parts of India and in Bangladesh.86

3.5 Household Allocation of Land

For women, there are two separate questions related to land rights: First, does awoman have the right to use, control, own, sell, lease, bequeath, or gift landwithin a marriage, a consensual union, or her natal family? Second, do womenwho are divorced, widowed, or abandoned, or who are second wives have the rightto use, control, own, sell, lease, bequeath, or gift land?

Women’s rights to land are almost always related to their relationship to a family. Legal reform efforts designed to enhance women’s land rights seldomconsider the intrahousehold distribution of land, yet it potentially has a greatimpact on women. This section looks at some of the barriers to women’s rights toland in terms of their family relationships.

3.5.1 Lack of Control over Land within the Marriage

Within a marriage, rural women generally have access to the use of land, but inmany cases husbands can sell the land without the permission of their wives,choose what crops they grow, and control money from the harvests. In suchinstances, use rights are insecure even within the marriage.

In Uganda, the Land Bill of 1998 originally included a provision for whichurban women fought hard. This was the “consent clause,” which was intended bywomen to stop the sale of any household land unless the spouse gave written

85 See the 1999 World Survey, supra n. 1, at 93; see also Bina Agarwal, Gender, Environ-ment, and Poverty Interlinks: Regional Variations and Temporal Shifts in Rural India1971–1991, 25 World Development 23 (1997).86 See the 1999 World Survey, supra n. 1, at 93.

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permission for the sale. However, the consent clause, as it was enacted in theLand Act, states that:

• No one can transfer land without the prior written consent of the spouse if:(1) the spouse ordinarily resides on this land, and (2) the spouse derives sustenance from this land.

• Transfer includes: sale, exchange, transfer, pledge, mortgage, lease or intervivos gift—or enter [sic] into a contract for these purposes.87

The consent clause can be read to apply only to land that is both residentialand used for sustenance, not to plots of land farther from the house. Manylandowners have several plots of land, most of them at some distance from thehouse. This interpretation, while legally viable, is not sufficient for women’sneeds and does not provide the equal rights promised under the constitution. Ina land market survey in Uganda, respondents stated that the formal written con-sent required under section 40 of the Land Act is rarely obtained. Most respon-dents were not sure if the consent requirement covered all the land plots of ahousehold, just the plot on which the family actually lived, or plots that wereused for family sustenance.88

In the Philippines, the statutory obligation for consent is much broader. Thewritten consent of both spouses is required for transactions in agricultural landdistributed to agrarian reform beneficiaries, regardless of whether the land is reg-istered in the name of both spouses or only one of them, if the land was obtainedduring the marriage or cohabitation.89 A transaction involving other property ofthe marriage or cohabitation also requires the consent of both parties. In Jader-Manalo v. Camaisa, the Supreme Court ruled that for the contract to sell propertyto be effective, both husband and wife must concur in writing.90

In other countries, the problem of control over land within the marriage isrelated to control over decision-making related to the wife’s land. In Tigray, mar-ried women are supposed to have their own land, but the land is usually controlled

87 Land Act of Uganda, §40 (July 2, 1998).88 R. Mwebaza & R. Gaynor, Land Sector Analysis: Land Markets, Land Consolidation,and Land Readjustment Component 13 (unpublished report, Govt. Uganda 2002) (copyon file with RDI). 89 See Judd & Dulnua, supra n. 67, at 13.90 Republic of the Philippines, Supreme Court Manila, First Division, Jader-Manalo v.Camaisa, G.R. No. 147978, January 23, 2002. See also Sumbad v. Court of Appeals, G.R.No. 106060, June 21, 1999, where the court found that in the case of a deed of donation,a common-law marriage is equal to a formal marriage, but there must be proof that thecouple lived together continuously.

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by a senior male in the household, and many women cannot even identify whichpart of the household land belongs to them.91

In Zimbabwe, women who were interviewed stated that their husbands wouldnot allow them to plant anything but maize on the land given to them, and that theydo all of the work but cannot do any of the planning related to crop growing.92

There may be little the law can do about women’s control over land within thefamily except as it relates to transfer of the land outside of the family. Writtenconsent should be required for any transfer of household land, no matter to whomthe land is registered. There can be difficulty with such a provision, however, interms of market efficiency in some contexts. Where polygamy exists and mar-riages and land are unregistered, keeping track of whose consent is required canbe difficult for banks or potential buyers. Bankers in Uganda complained aboutthe consent requirements imposed by section 40 of the Land Act. They reportedthat it was impossible for them to verify that all the required consents had beenobtained prior to granting a loan using land as collateral.93

In countries where there is both polygamy and a lack of registration of bothland and marriages, one possibility is to provide that a sale or mortgage is valideven if it is later contested for lack of consent, if the purchaser or mortgagee madea reasonable effort to obtain consent. Reasonable effort should be defined so asto create a balance between the needs of the bank or seller for efficiency and awoman’s rights to land. Admittedly, such a balance would not be easy to establishand would be contextual. Where a lack of balance is found, the offending party(the seller or mortgagor) should have to provide land or equivalent compensationto the offended party (the wife who did not provide consent). Of course, whilethis may be an adequate legal solution, it is not likely that women will sue for thisremedy, and therefore it may provide more security for banks and purchasers thanit does for women.

3.5.2 Divorce

Three main issues affect women’s rights to land upon divorce, abandonment, orending of an unregistered union: First, divorce is still stigmatized in many coun-tries, especially those where family is the highest value and takes precedence overindividual rights. In some countries divorce is not allowed, and in others, divisionof property is based on the guilt of the parties.94 Second, women often move to

91 See Berhane & Haile, supra n. 28, at 40.92 See Mushunje, supra n. 26, at 11. 93 See Mwebaza & Gaynor, supra n. 88, at 13.94 See Judd & Dulnua, supra n. 67, at 11.

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their husbands’ family houses upon marriage and are reluctant to claim their landupon divorce because it is part of their husbands’ family land or is in their husbands’ villages. Third, women often lack information about their right to landfrom the marital household.95

The legal solution that is most often promoted to protect women’s propertyrights upon divorce or abandonment is to provide for co-ownership in the law.While co-ownership is an important goal, such a legal rule alone will have a lim-ited impact on women’s rights to property if custom and tradition do not supportit. “Where customary or traditional property rights and gender relations arestrong, they are likely to dominate the distribution of rights within and around thelandscape.”96 It is critical to recognize local practices when designing policy.

However, because legal rules provide room for change within a culture, theycan be valuable. For example, the Tigrean land reform mandated joint registra-tion of property in marriage or, in the case of nonformalized unions, registrationin the woman’s name. A recent study has indicated that men have become con-scious of women’s rights to their land and for this reason have been more cautiousabout beating them and about initiating divorce. However, the rate of divorce hasincreased in recent years because women are leaving relationships that are vio-lent or where the husband does not contribute to the family. Women stated thatthe land reform has made them independent. A woman has the right upon divorceto take both the property she brought to the marriage as dowry and her half of themarital land. Property obtained after marriage is divided equally. Women statedthat if they owned land and property upon divorce, they could not be forced tostay with men.97

While they are not a panacea, without legal rules supporting women upondivorce, women have little choice to leave a violent or abusive relationship. InUganda, women move to their husbands’ villages upon marriage; when they areseparated, divorced, or abandoned, they generally lose all their rights to their land,their children, and their house. No law protects them. No woman interviewed hadvoluntarily chosen to leave her husband because economically it is not a viableoption. Yet a significant number of women are divorced or separated through nochoice of their own. Of the women interviewed in one household study, all ofwhom were randomly chosen, 9.6 percent were single or divorced.98

In Karnataka State, India, separated or divorced Hindu women are oftensocially stigmatized and rarely receive maintenance. Hindu, Muslim, and

95 See Berhane & Haile, supra n. 28, at 37.96 See Meinzen-Dick et al., supra n. 6, at 1310.97 See Berhane & Hale, supra n. 28, at 38.98 See Giovarelli & Eilor, supra n. 32, at 21.

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Christian law all allow for maintenance upon divorce, but none allow a womanthe right to any of her husband’s ancestral or separate property. Co-ownership ofmarital land is not a concept supported by law.99 Women most often must supportthemselves, unless they have adult sons who can assist them. Separated womenare not usually supported by their exhusbands, inlaws, birth parents, or commu-nities. Such women nearly always lose access to land that they used to work onand typically do not receive any maintenance from their husbands; nor is any ofthe dowry that was paid on their behalf returned. They can no longer have accessto land held by their inlaws or husbands and must leave their husbands’ villages.Separated and divorced women rarely go back to their birth families’ homesbecause they are considered shamed, so they do not regain access to their fathers’land either. This is especially true if a woman’s brother and his family are livingin the family home. Many women said it would be socially awkward to go backto their birth families and there would not be enough land, money, or room to doso. The only land found to be retained by separated women was house plot landreceived from government schemes that had been titled in their own names.100

In cultures where women traditionally move to their husbands’ homes or villages, divorce can be economically very difficult for women. Women may betoo ashamed or too poor to enforce their legal rights. General legislation regard-ing divorce may be positive for women, though at the same time regulations forits implementation may thwart women’s access to court. For example, in Kyrgyzstan, the person who applies for property division (almost always thewoman) must pay the state fee. If property is worth 500 to 10,000 soms, the plain-tiff must pay 5 percent of the value of the property; if the property is valued atover 10,000 soms, the plaintiff must pay 10 percent of the value.101 Article 102 ofthe Civil Code provides that the court can waive payment, and poor women oftendo pay less than the stated percentages, but they must pay something, and usuallyany amount is too much. Moreover, the amount must be paid in advance in orderfor the judicial procedure to commence. The full burden for payment falls on the person requesting the property division and is not later reimbursed by the oppos-ing party.102

Those working on land law reform in developing countries do not generallyanalyze the rules for division of property upon divorce. However, the legal frame-work surrounding divorce and division of property can have a major impact on

99 See Brown et al., supra n. 31, at 8.100 See id. at 35.101 Law on State Duties (2000), art. 4 (Kyrgyz Republic). Judges in the Kyrgyz Republicidentified this regulation as a major impediment to women’s access to court for propertydivision.102 See Giovarelli et al., supra n. 12, at 21.

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women’s right to land and on women’s status within the family. While in manycountries domestic violence is endemic, women often cannot leave violent situa-tions because they lack control over resources and are economically dependenton their husbands and their husbands’ families. Land reform should review leg-islation affecting division of property upon divorce and encourage equitable dis-tribution of property.

3.5.3 Bride Price and Dowry

The customs of bride price and dowry (the exchange of wealth upon marriage)are often related to women’s ability to own land. In India and the Kyrgyz Repub-lic, because dowry is seen as the daughter’s premortem inheritance, she does nothave a right to inherit land from her natal family. However, in the Kyrgyz Repub-lic, women do have control over their dowry throughout their married life, and itremains with them upon divorce or death of the spouse.103

In the State of Karnataka in India, the bride’s family pays the dowry to thegroom and his family, who control it throughout the marriage. Dowry is notreturned upon divorce. The girl’s family is essentially purchasing someone to takecare of their daughter but not providing her with any economic power of her own.Interviewees stated that they would often sell land or livestock to pay dowry andwedding costs. Indeed, out of 400 households that responded to a questionnaire,the reason most commonly cited for selling land was to pay for dowry and wed-ding costs.104

In Uganda, women often gave “bride price” as the reason why women do notor should not own land. Here, the husband’s family pays the wife’s family for thebride. Payment of bride price simultaneously indicates respect and love for thebride and deems her the property of her husband. Upon divorce, women’s fami-lies are often expected to return the bride price and women are sent away with nomarital property or wealth. In interviews, men stated that women cannot own landbecause “property cannot own property.”105

It is probably unrealistic to legislate against dowry and bride price. For exam-ple, in India dowry has been outlawed since the 1961 passage of the Dowry Prohibition Act. Nonetheless, not only is dowry still practiced, the incidence andrequirements are increasing rather than decreasing. Since dowry and bride pricecontinue to be practiced, in countries where women do not have rights to land orother major assets because of this exchange of money, it would significantlyimprove the position of rural women if they at least had a clear, easily asserted

103 See id. at 23.104 See Brown et al., supra n. 31, at 19.105 See Giovarelli & Eilor, supra n. 32, at 18.

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legal right to a portion of all marital property, including anything given for dowryor bride price. In this case, co-ownership legislation should perhaps provide thatall property acquired during marriage is co-owned, with the possible exceptionof inherited property. The usual exceptions in western culture for separate prop-erty may not be appropriate in cultures where women’s ownership rights to prop-erty are weak. If a portion of all marital property is not politically or culturallyacceptable, at a minimum all gifts and cash received in conjunction with marriagecould be deemed by the law to be jointly owned by the married couple, no mat-ter who was given the cash or gift.

3.5.4 Polygamy

Many societies do not outlaw polygamy, and even when a country does legallyprohibit it, if polygamy is customary or traditional, the prohibition is generallyineffective. However, in many countries polygamy seriously affects women’srights to property and is the source of much tension and anxiety over land rights.Polygamy complicates legislation requiring written consent of spouses for dispo-sition of property. It complicates provisions on inheritance and co-ownership ofland. Legislating around it is difficult, but to ignore formal or informal polygamyis to inadequately protect women’s property rights. The situation is made evenmore difficult by the fact that many men refuse to acknowledge or discusspolygamy, and women are often hesitant to raise the issue.

While written law prohibits it in the Kyrgyz Republic, under customary law amullah can perform and register the marriage of a second wife. More and moremen have a second wife, and the arrangement is generally kept secret. However,in field research women did talk about being concerned about losing their hus-bands and their rights to their husbands’ income if their husbands took secondwives. Women state that husbands generally favor second wives, so while theirhusbands are living, the first wife’s income and security are threatened. Becausewomen who are second wives have no legal rights to any of the men’s income orproperty, these women are also very vulnerable. First wives, meanwhile, are vulnerable to having to divide their property among heirs of their husbands.

A 1993 study on land disputes in Uganda found that in Kabale and Mbale Districts, land shortages, rising populations, and polygamy (allocation of land tomultiple children and multiple wives) led to a predominance of intrafamilial landdisputes.106 Men choose fields for their new wives, often at the expense of theirprevious wives. Children’s inheritance may depend on their mother’s status at the

106 J. Kigula, Land Disputes in Uganda: An Overview of the Types of Land Disputesand Dispute Settlement, Research & Policy Development Project Paper, No. 3 (unpub-lished, Makerere Institute of Social Research, Uganda, and the Land Tenure Center, U. Wisconsin–Madison 1993).

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time of their father’s death. In some sub-Saharan African countries, the eldest sonof the most senior wife is likely to receive the largest share of the property.107 Asthe heir he is responsible for administration of the estate, including allocation ofthe land among siblings. He usually is not very well disposed to the children ofother wives.108

The law should not make broad proclamations about the relative worth of mar-riages (such as: the first is the most important, or marriages with children are supe-rior). However, the law can make determinations about property ownership. Onepossible rule would be that upon the husband taking a second wife, all propertybelonging to the first marriage or consensual union would be partitioned so thatthe husband had only his share to distribute to his new wife and their children.

Of course, the law is a very cumbersome tool for dealing with complicatedfamily relationships; if it does not make sense within a particular context, it willnot be followed. Customary polygamy rules need to be thoroughly understoodbefore property division legislation or titling legislation is drafted.

3.5.5 Inheritance, Inter Vivos Transfers, and Gifts

There are two main ways that women might inherit land and thus ownershiprights in it: as a daughter from a parent, or as a wife from a husband. To empha-size the importance of inheritance for women, in a study done in Peru, Chile,Nicaragua, and Mexico, it was found that the primary way women farmerlandowners had acquired their land was through inheritance (39 percent). Thoughmen were three times as likely as women to have inherited land, inheritance wasstill the principal way that women became landowners.109

Generally law recognizes succession by both will and operation of law. Suc-cession by will occurs when the deceased has written a will that complies with alllegal requirements for validity and that orders distribution of property. Usuallythe testator may bequeath all or part of her property to any person—even peoplewho are not heirs by law—although there are often obligatory shares for childrenor spouses. Intestate succession by operation of law occurs when there is no willor when a will does not cover the whole estate.110

In rural communities in developing countries, very few people write wills, sorules related to intestate succession become important. Legal intestacy rules

107 T. Hilhorst, Women’s Land Rights: Current Developments in Sub-Saharan Africa inEvolving Land Rights, Policy and Tenure in Africa 181, 186 (C. Toulmin & J. Quan, eds.,DFID/IIED/NRI 2000). 108 See id. at 186.109 See Deere & León, supra n. 50, at 314–18.110 See generally G. Nelson, W. Stoebuck, & D. Whitman, The Law of Property (WestGroup Pub. 2002).

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usually provide that, as a first priority, children receive a certain share of thedeceased’s property, as does the spouse. In some countries the shares of the chil-dren and spouse are equal, and in others the shares are unequal or are not dividedat all, because one child alone inherits parental property. Many pluralistic legalsystems allow the marriage to determine the inheritance regime that applies.For example, if a person marries as a Muslim in India, the inheritance rules are different from those applying to a person who marries as a Hindu.111

Customary law also plays a major role in the inheritance rules of the commu-nity; in some countries where the intestacy rules have been written with littleinput from local communities, the law on intestate succession is completelyignored because it is unknown.112 Customary rules do not necessarily providedirectly for a spouse or for all the children, and in some cases customary rulesexclude women from inheriting land as daughters or widows. In other areas,daughters can inherit only if there are no sons or if they are single, divorced, orwidowed and have returned home. Women may continue to have access to landbut without ownership. If custom dictates that a woman move to her husband’svillage upon marriage, her ability to inherit as a widow may be impeded.

Customary law can also make it difficult for women to inherit land even if thewritten law favors such inheritance. In Zimbabwe, while formal law provides forequality between men and women, customary law views women as juveniles.Therefore, in Magaya v. Magaya,113 the Zimbabwe Supreme Court ruled thatbecause under customary law women are juveniles, a woman could not inherit herfather’s property even though she was named in his will.

In Botswana, the formal law itself is contradictory in its treatment of women’sproperty rights. The Married Persons Property Act (MPPA) provides for womento marry in community property or out of community property.114 However,

111 See Agarwal, supra n. 51, at 198–232.112 See for example, Giovarelli et al., supra n. 12, on customary and legal inheritance inthe Kyrgyz Republic. 113 [1999] ICHRL 14 (February 16, 1999). The Supreme Court ruled 5–0 that customarylaw had precedence over the Constitution. Venia Magaya, 58, sued her half-brother forownership of her deceased father’s land after her brother evicted her from the home. Underthe Zimbabwean Constitution and international human rights treaties, Magaya had a rightto the land. However, the court ruled that women should not be able to inherit land “becauseof the considerations in African society,” basing its decision on art. 23 of the Constitutionof Zimbabwe, which prohibits discrimination in the application of African customary law. 114 If married in community property, all property is pooled and shared upon divorce. Ifmarried out of community property, essentially each spouse retains the property he or sheowned before marriage and property acquired after marriage is treated as individual prop-erty unless the parties clearly intended to have joint ownership (usually evidenced by awritten contract). Ministry of Lands, Housing, and the Environment of Botswana, Reviewof Botswana National Land Policy, Final Report 80 (January 31, 2003).

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the Dissolution of Marriage of Persons Subject to Customary Law Act, the Succession Act, and the Common Law and Customary Law Act provide that mar-ried persons subject to customary law may be dealt with in accordance with customary law unless they execute a contract excluding the application of cus-tomary law; make a will; or otherwise demonstrate their intention to be dealt within accordance with common law.115 Under customary law, men are generallyfavored over women in terms of land rights. Much of the common law onlyapplies when customary law does not.

Land law reformers need to study policies related to intrahousehold transfersof land like inheritance before advising on land-related legislation. Inheritancerules and practices have a major impact on women’s rights to ownership of landand their poverty status. As with many issues related to the family, inheritancecustoms are deeply embedded in society. If a policy goal is to assist women-headed households and deal with women’s poverty, establishing widows’ rights toland as a policy priority would be very beneficial. A national discussion of inher-itance rules and a willingness to provide money to work on inheritance policywould raise the status of the discussion of women’s rights to land in developingcountries.

3.5.6 Widows

In many countries, whether there are children is often important under customarylaw in determining whether or not women will have access to land upon the deathof their spouses. Without children, women who have moved to their husbands’villages are often expected to return to their fathers. Women may not inherit landfrom their spouses because the land belongs to their husbands’ families.

In Tigray, Ethiopia, a widowed woman is ensured access to the family land,especially if she has children from her marriage. However, widowed women aredependent on their adult sons for the use of the land.116

In Karnataka, India, under customary law only a widow who had young chil-dren was likely to inherit land. If a widowed woman did not have children(whether adult or young), she not only did not inherit land, she often completelylost access to the land of her husband and inlaws. Most Hindu women in this posi-tion did not regain access to their birth families’ land either. These widows sup-ported themselves by agricultural labor when they could get it and sometimessupplemented this income with government pensions of approximately100 rupees per month (close to US$2.00).117

115 See id. at 161.116 See Berhane & Haile, supra n. 28, at 41. 117 See Brown, et al., supra n. 31, at 26.

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During field research in Karnataka, widows with young children who had notinherited any of their husbands’ land were interviewed. In these cases, the husband’s family took over his land and assets and the widow was unable to getaccess after his death. These widows also worked as agricultural laborers, andthey sometimes had to leave their children with relatives, or even at orphanages,to find work in the city.118

While males within the family generally take control over land upon the deathof a male head of household, inheritance is sometimes the only possible chancefor women to own land at all. In Burkina Faso, the only women who have directcontrol over land are widows. But even this situation is uncommon, and thedeceased’s children or brothers usually take over the land.119

In Uganda, under the Succession Act, widows and widowers are treated simi-larly, although customary law favors widowers. Under the formal intestate law,spouses have the right only to occupy, not own, their houses and the land imme-diately adjoining the holdings, even if they farmed land at a distance from theirhouses during the marriage.120 This right to occupy is quite limited. Widows andwidowers must farm the land and cannot cut down trees, erect or change build-ings, or use the land for other purposes.121 They have no right to sell the land. Forother property, including other plots of land, spouses have the right only to a15 percent share. One place where there may be room to change legislation inUganda related to women’s rights to land may be in the area of inheritance. How-ever, for all the attention focused on Uganda’s land law, the inheritance rules haveremained unchanged and unchallenged.

In spite of these already limited legal rules, a serious problem in Uganda isproperty-grabbing by the husband’s family. In one study, out of 204 widows,29 percent said that property was taken from them at the time of their husbands’death.122 Widow-headed households are overrepresented by far among the poorat 13 percent of the poorest quartile of the Ugandan population.123 The widow’sland is divided among her male relatives, many of whom may have helped raisethe bride price at the time of her marriage.124

118 See id. at 26.119 See Kevane & Gray, supra n. 4, at 8.120 Succession Act of Uganda, sched. 2, para. 1 (1964, as amended in 1972).121 See id. sched. 2, para. 7. 122 L. Z. Gilborn, R. Nyonyintono, R. Kabumbuli, & G. Jagwe-Wadda, Making a Differencefor Children Affected by AIDS: Baseline Findings from Operations Research in Uganda 1(Pop. Council Inc. 2001), http://www.popcouncil.org/pdfs/horizons/orphansbsln.pdf.123 S. Appleton, Women-Headed Households and Household Welfare: An EmpiricalDeconstruction for Uganda, 24 World Development 1811, 1819 (1996). 124 See Giovarelli & Eilor, supra n. 32, at 10.

Overcoming Gender Biases in Property Rights Systems 99

Women in Uganda want a change in the law governing widows’ inheritancerights in land. Even women from the most remote areas want legal changes.A survey of two districts in Uganda found that women are most concerned aboutwidows and orphans because they are the most vulnerable members of society.Women were less likely to want rights of ownership within their marriages aslong as they have access to land, but they were almost unanimous that widowsshould have the right to own the land they had farmed during their marriages.125

In the Kyrgyz Republic, customary law provides that the youngest son inher-its the house and land of the family and is responsible for taking care of his par-ents. Although statutory law provides that property should be divided between thesurviving spouse and children, most women are not in favor of the law becausethey do not feel they would be as well taken care of. Because the youngest soninherits the land and house, he is obligated to provide for his mother. Withoutsuch an inheritance rule, none of the children may feel obligated or have an incen-tive to care for their parents. Moreover, the plots of land in the Kyrgyz Republicare very small and not economically viable if they are apportioned among largefamilies. Written inheritance law was not followed in any of the Kyrgyz villageswhere interviews were done. Women also stated that they receive dowry as theirpremortem inheritance that they have control over, and many felt that the right toinherit land was not necessary.126 The issue of social and customary obligationas it relates to land rights should be further studied.127

3.5.7 Daughters

Under customary law in many countries, inheritance of land by daughters isdirectly related to marital residence and to the customary means of distributingwealth. Women who leave their homes and join their husbands’ families oftenlose any right to inherit their parents’ land.128 Ironically, they also do not gener-ally have the right to inherit their husbands’ land because it belongs to their husbands’ families. For many women this double bind effectively eliminatesinheritance as a means of acquiring land. Frequently, however, daughters in

125 See id. at 26.126 See Giovarelli et al., supra n. 12, at 23.127 Where there is no state social safety net for the elderly, a woman may benefit morefrom being cared for by her son than by directly owning land, especially given customaryprohibitions against women performing certain duties. 128 On the other hand, women in matrilineal societies are often in a very powerful positionin relation to land rights. See generally R. Strickland, To Have and To Hold, Women’sProperty and Inheritance Rights in the Context of HIV/AIDS in Sub-Saharan Africa,ICRW Working Paper (ICRW June 2004).

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patrilocal societies are not concerned about inheriting family land because theyno longer live in their families’ villages. Almost all the women interviewed during field research in the Kyrgyz Republic and India stated that they would notrequest land from their families even if they were legally entitled to a share.

In traditional African communal tenure systems, land was used mainly for cul-tivation and grazing and was not owned by individuals. Women moved to theirhusbands’ clan and their land. Daughters did not need to inherit the property oftheir parents to protect them except when they were unmarried or were divorcedand had returned home, at which time an arrangement was negotiated with theirparents’ clan so that they would have access to land.129

In Uganda, under the Succession Act, children currently have the right to share75 percent of their parents’ land equally among themselves. However, few daugh-ters inherit land in this patrilocal society, and those who do usually retain only theuse of the land while they are living with their family and do not have the right tosell it.130

In India, the Hindu Succession Act provides that daughters can inherit theproperty of their parents. As a simplistic description, Hindu personal law as fol-lowed in most of India (except in West Bengal, where a different school of Hindulaw is followed) divides property into two classes: separate (usually self-acquired) property and joint family (ancestral) property. Separate property, whichincludes land the deceased purchased or received from the government, devolvesin the first instance in equal shares to the deceased’s sons, daughters, and surviv-ing spouse and, if the deceased is a man, to his mother.131

The devolution of joint family property is more complicated. Traditionally,only males gained a share of the joint family property at birth (owners of suchjoint family property shares are known as “coparceners”). Some states, however,have passed amendments to the Hindu Succession Act to permit daughters, likesons, to become coparceners and receive a share of the undivided joint familyproperty (including land) at birth. This is the case in Karnataka, Andhra Pradesh,Tamil Nadu, and Maharashtra.

However, field research in the State of Karnataka indicated that daughters gen-erally did not exercise their right to inherit land from their natal families; nor didthey exercise their present ownership right to the joint family land as coparceners.The only exception was when a woman came from a family that had only daugh-ters. Daughters gave two common reasons for not asserting their rights under theSuccession Act: (1) their families had paid or would pay very high dowries and

129 See Gopal, supra n. 40, at 21.130 See Giovarelli & Eilor, supra n. 32, at 10.131 Hindu Succession Act of India (1956) (as amended) §§8 and 15.

Overcoming Gender Biases in Property Rights Systems 101

other expenses to get them married; or (2) their families had limited land and theyfelt uncomfortable asking to take a share of that small parcel of land away fromtheir brothers. From their perspective, these women received their share of thefamily property through their dowry and wedding expenses, even though dowrywas given not to them but to the groom and his family.132 Males control the dowryand may use it as capital for setting up business or buying land, which is then putin the male’s name.133 Parents responded similarly that their responsibilities totheir daughters were met by marrying them off.134

3.6 Women’s Knowledge of and Ability to Enforce Land Rights

While countries need to enact gender-sensitive legislation (family law, civil law,and the law on registration), more importantly women need to know their rightsand be able to access and use them once they have them.135 Women need “legalland literacy”— knowledge of land rights and obligations and the ability to applythe rights. Ideally, both individuals and communities would achieve an operatinglevel of land right literacy.

Women need to be knowledgeable about land laws and procedures. They alsoneed to understand the complexity of land issues, the relationship between dif-ferent laws and practices, the options available, and the limitations of the legisla-tion and means of implementation. Knowledge of both formal and informal systems for exercising land rights is critical in most parts of the world: What arethe real rights and obligations associated with land? How can those rights be exer-cised to their fullest? What happens if the obligations of the holder of land rightsare not fulfilled? What are the consequences of noncompliance with the writtenor the customary law? In addition to understanding land rights and obligations, tobe land-literate means understanding how to apply that knowledge in practice.

To be sustainable and successful, land literacy must be mainstreamed intosociety. Not just women but also local leaders, farmers, judges, and land profes-sionals must all understand the law and its implications and how to use and fol-low it. The rule of law is more likely to have value if there are many people whounderstand land law and use and protect their rights under the law.

132 S. Arun, Does Land Ownership Make a Difference? Women’s Roles in Agriculture inKerala, India in Women, Land, and Agriculture 19, 20 (Caroline Sweetman, ed., Oxfam1999); and Brown et al., supra n. 31, at 30.133 See Arun, supra n. 132, at 22.134 See Brown et al., supra n. 31, at 34.135 See the 1999 World Survey, supra n. 1, at 92.

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Major legal changes will not be effective without a sustained effort to imple-ment the changes and to sensitize the public to and gain their support for thechanges. While workshops, training material, and mass media campaigns are ableto alert the public to new laws, they do little to effect a change in attitude or actionunless they are augmented by the efforts of local people who both understand andsupport the legal changes. Combining a mass media effort with the sustainedpresence of knowledgeable people at the village level will have a strong lastingeffect.

Several different levels of legal literacy and education are necessary if changeis to occur. Those to be educated include:

• Policymakers and local customary leaders, about the economic value ofwomen having secure rights to land;

• Husbands, about the economic benefit possible if their wives purchase orhave rights to land;

• Women, about dispute resolution if rights to land are impeded; • The public, about new laws and programs; and• Women, about their right to land from the marital household.

The Lao PDR is an example showing how legal literacy can have an impact onwomen’s right to land. In 1995, the government of the Lao PDR, working withthe Australian Agency for International Development (AusAID) and the WorldBank, created a gender-sensitive implementation procedure for land titling withthe LWU as a partner. The LWU trained the Department of Land staff and fieldteams and provided community education related to women’s rights to land titlesin villages where titling occurs. As a result, there has been an increase in the num-ber of titles in the name of women and an increase in the number of joint titles.136

3.7 Conclusion and Recommendations

In most of the developing world, women’s sphere of operation is the household.To overcome gender biases in property systems, donors must look at legislationand programs that will reach the household level. This means addressing not onlyproperty law and contract law but also family law. In many transitionaleconomies, while all other codes have been updated, family codes have not been;nor have donors supported the law reform process.

Overcoming gender bias requires an understanding of customary law and tra-ditions, and of what is possible and what is not. Rural women understand whereto focus change. In Uganda, for example, rural women are not pushing for co-

136 World Bank, supra n. 59, at 412.

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ownership of land, although they want it. They are pushing instead for rights forwidows, an achievable goal within their social context. Rural women must be partof the discussion of how to overcome gender bias.

Finally, overcoming gender bias will require that male leaders, both within thecountry and within donor organizations, make a commitment to change thatincludes speaking out publicly against gender bias and making its elimination apriority. Information campaigns and education must include men as well aswomen and must focus on issues that specifically affect women.

It is too easy to dismiss equality for men and women in a property rights sys-tem as either impossible to achieve or as a second, less important, step. In fact, ifgender bias is to be overcome, it must be a priority from the beginning, when reg-istration systems are designed, when legislation is being written, and whenassessments are being done.

The following sections list recommendations for overcoming gender biases.

3.7.1 General Recommendations

• Focus funds and expertise on family law in projects concerned with landrights, reviewing the family code, the inheritance rules, and civil legislationin terms of women’s rights to land both within a marriage or consensualunion and should the family break down.

• Where feasible, encourage passage of co-ownership rules in civil legislation. • As part of any program related to property rights, educate women regard-

ing their legal rights to land, and educate men about the value of women’sownership and control over land.

• Provide credit to poor, unmarried (single, divorced, widowed) women topurchase land and inputs.

• Ensure that women receive extension services to assist them with land own-ership and in dealing with customary taboos against women performingcertain farming tasks.

• Encourage women farmers to form self-help groups and community actiongroups.

• Study the effects over time of legal innovations that address women’s rightsto land in various countries and contexts.

3.7.2 Creating New Rights to Land

• Mandate joint titling or distribute individual titles to women in the privati-zation stage. As a part of the process, provide women with access to credit,legal, technical, and market information and to a mechanism to enforcetheir rights.

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3.7.3 Securing Rights through Titling Projects

• At a minimum, pass legislation that provides that in a marital relationship,co-ownership of land and property is the presumption for land acquiredduring the marriage. Titling projects should not proceed without firstaddressing the legal issues of women’s rights to land.

• Provide women with a mechanism to enforce land rights.• Encourage registration as co-owned for land acquired after a couple begins

living together in a consensual union. • Ensure that registration legislation includes specific direction about registra-

tion of married couples and those living in consensual unions. Ensure that reg-istration officials and bureaucrats understand and implement these directions.

3.7.4 Markets

• Educate men about the economic benefit possible if their wives purchaseland, and provide resources and information to women in a market-assistedland program.

• Understand the customs of the society and how they affect women’s abilityto purchase land.

• Draft legislation that requires that both husband and wife consent to a trans-action involving land acquired during the marriage or cohabitation, whetheror not the land is registered in the name of both or of only one spouse.

• In countries where there is polygamy and neither land nor marriage is reg-istered, draft a consent provision that (1) requires the consent of both hus-band and wife to transfers of land, (2) states that a sale or mortgage is valideven if later contested for lack of consent, if the purchaser or mortgageemade a reasonable effort to obtain consent, and (3) in the latter case,requires the offending party (the seller or mortgagor) to provide land orequivalent compensation to the offended party (the wife who did not pro -vide her consent).

3.7.5 Household Allocation of Land

• During the land reform process, review legislation affecting division ofproperty upon divorce and encourage amendments to ensure the equitabledistribution of property.

• Educate women regarding their rights to property upon divorce and provideinexpensive dispute resolution.

• Adopt legislation that provides that all gifts and cash received in conjunc-tion with a marriage be deemed to be jointly owned by both spouses,regardless of to whom the cash or gift was specifically given.

Overcoming Gender Biases in Property Rights Systems 105

• Review regulations associated with access to the courts; for cases of divi-sion of property, provide that court costs will be shared by both parties andpaid after the property has been divided.

• Where polygamy is practiced, even if it is illegal, draft legislation statingthat where the husband takes a second wife, all property belonging to thefirst marriage or consensual union would be partitioned, and the husbandwould only have his share to distribute to his new wife and any children.

• Establish widows’ rights to land as a priority policy issue to be consideredwhen property system legislation is drafted. A national discussion of inher-itance rules and a willingness to provide money to work on inheritance pol-icy would raise the status of the discussion of women’s rights to land.

• Educate men and women about the relationship between dowry, bride price,and property ownership, and encourage a new look at distribution of prop-erty within the family in light of a changing property system.

C H A P T E R 4

A Framework for Land Market Law with the Poor in Mind

Leonard Rolfes, Jr.*

4.1 Introduction

An estimated 1.2 billion people across the globe live on less than $1 per day. Anadditional 1.7 billion people live on less than $2 per day. And still more millionsare considered poor in places like the former Soviet Union, using the povertyguidelines as set by those countries. Over half of these estimated 3 billion peoplereside in the countryside and depend significantly upon agriculture for theirlivelihoods.

This dependence upon agriculture means that access to land is vital to the ruralpoor. For most of them, land is the main means of generating income, accumu-lating wealth, and transferring that wealth between generations.1 Land access alsocan give value to household assets that cannot be used effectively except on theland, provide cheap food, and serve important insurance functions. Moreover,when women in particular control access to land, “child welfare in terms of nutri-tion, health, and education is improved.”2

Looking at the land question in a less positive light, a World Bank study ofIndia identified landlessness as the greatest predictor of poverty, even more thanscheduled castes or literacy.3

107

* Leonard Rolfes, Jr. is Senior Attorney at the Rural Development Institute (RDI) in Seattle, Washington. Information about the Institute can be found at http://www. rdiland.org. The views expressed in this chapter are the views of the author and do not necessarily represent the views of RDI.1 World Bank & Klaus Deininger, Land Policies for Growth and Poverty Reduction, WorldBank Policy and Poverty Reduction Report xix–xx (World Bank & Oxf. U. Press 2003).2 Alain de Janvry, Jean-Philippe Platteau, Gustavo Gordillo & Elisabeth Sadoulet, Accessto Land and Land Policy Reforms, in Access to Land, Rural Poverty, and Public Action 2,5 (Alain de Janvry, Jean-Philippe Platteau, Gustavo Gordillo & Elisabeth Sadoulet, eds.,Oxf. U. Press 2001).3 World Bank, India: Achievements and Challenges in Reducing Poverty xiv, 12 (WorldBank 1997).

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This chapter explores the role that markets and the law can play in helping therural poor gain access to the land they need to lessen their harsh economicpredicament. In particular, it discusses the requirements for a legal framework thatwill provide legal definition, and hopefully legal power, to market mechanismsthat facilitate access to land. Part two of the chapter discusses the extent to whichland markets do in fact improve land access for the rural poor. The third part, theheart of the chapter, lists topics that play a role in markets and land access for thepoor and presents the legal issues that pertain to each, grouped into three broadcategories: those that relate primarily to tenure security; those that relate prima-rily to improving market efficiency; and those that relate primarily to special initiatives that may help the poor gain access to land. The fourth part discussesmethods of bringing customary traditions and informal practices regarding landinto the formal legal system. The fifth part offers brief concluding thoughts.

This chapter is premised on the theory that law reform has an important roleto play in the ability of land markets to bring economic benefits to poor people.But law reform by itself is not a panacea for poverty: If law reform is to be a use-ful poverty-reducing tool, the social and economic issues that cause or aggravatepoverty must also be addressed. To that end, law reform provides an importantcomplement to needed economic and social reform, serving as a valuable tool toimplement reforms and improve their efficacy.

4.2 Impact of the Land Market on the Rural Poor

Land changes hands in a market setting in two main ways: temporary transfer ofuse rights, primarily through leasing; and permanent transfer of ownership orowner-like rights through purchase-and-sale. A threshold policy question thatnecessarily guides the content of land market law is whether leasing and purchase-and-sale are effective in improving the access of poor peoples to land.This question is briefly explored here.

It is generally accepted that lease markets can enhance land access for thepoor.4 Leasing, unlike sales, does not require significant up-front cash or credit,and the large amount of land potentially available for leasing, variability in farmsize, payment terms, different lease lengths, and other flexible conditions providesignificant opportunities for lease deals that bring benefits to tenants as well as

4 Jean-Marie Baland, Frederic Gaspart, Frank Place & Jean-Philippe Platteau, The Dis-tributive Impact of Land Markets in Central Uganda, Working Paper, 30 (Centre deRecherche en Economie du Développement [CRED], Dept. Econs., U. Namur 2000);Pedro Olinto, Benjamin Davis & Klaus Deininger, Did the Poor Benefit from Land Mar-ket Liberalization in Mexico? Panel-Data Evidence of the Impact of the Ejido Reforms29–30 (World Bank 1999); and World Bank & Deininger, supra n. 1, at 84–86.

A Framework for Land Market Law with the Poor in Mind 109

landowners. Leasing is also often cited as an entry point into the agricultural ladder “in which a landless individual progresses from agricultural worker, tosharecropper, fixed-rent tenant, and ultimately landowner.”5

Experience in Pakistan provides empirical proof that poor people can gainaccess to land through the lease market. In one study, 64 percent of the landlesspeople surveyed rented land on either a sharecropped or fixed-rent basis. Thesame study cautioned, however, that access through leasing declines as agricul-ture becomes more capital-intensive. As capital plays a larger and larger role,landlords seek to rent in more land themselves or seek out tenants who have capital assets to contribute to the production process.6

Meanwhile, the preponderance of the empirical evidence suggests that indeveloping countries land sales markets have not significantly facilitated accessof the rural poor to land. Studies in rural India do indicate that sales markets havehelped small and marginal farmers acquire ownership rights to land—though thismay not be true for the absolute poorest7—but evidence from Honduras and Chilesuggests that sales markets do not facilitate access, while in Paraguay markets maycontribute to a reduction in access.8 An important factor contributing to these dis-appointing results is weak access to capital, which has “a major depressing effecton the ability of poor households to use even liberalized land markets to improvetheir access to land.”9 Moreover, the sales market in certain contexts has served asa mechanism for the poor to lose land through distress sales and seizure of mort-gaged land.10 Some also argue that the sales market will increase land concentra-tion, with “land speculators and oligarchs” buying up agricultural land to the detri-ment of average rural people. These concerns have been expressed in regions asdisparate as Central America,11 the former Soviet Union, and Ethiopia.12

5 Elisabeth Sadoulet, Rinku Murgai & Alain de Janvry, Access to Land via Rental Mar-kets, in de Janvry et al., eds., supra n. 2, at 210.6 See id. at 217–18.7 Robin Mearns, Access to Land in Rural India: Policy Issues and Options, World BankPolicy Research Working Paper No. 2123, 22 (World Bank 1999).8 Michael R. Carter & Ramón Salgado, Land Market Liberalization and the AgrarianQuestion in Latin America in de Janvry, et al., eds., supra n. 2, at 263 and 273.9 Michael R. Carter, Designing Land and Property Rights Reform for Poverty Alleviationand Food Security, Land Reform: Land Settlement & Cooperatives 44, 53 (2003/2). 10 See Baland et al., supra n. 4, at 2–3; and Rashid Faruqee & Kevin Carey, Land Marketsin South Asia: What Have We Learned? World Bank Policy Research Working PaperNo. 1754, 9 (World Bank 1997).11 See Carter & Salgado, supra n. 8, at 256.12 Berhanu Nega, Berhana Adenew & Samuel G. Sellasie, paper presented at the WorldBank Regional Workshop on Land Issues in Africa & the Middle East, Country CaseStudy: Ethiopia 24 (Kampala, Uganda, April 29–May 2, 2002) (copy on file with RDI).

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The World Bank’s 2003 research report, Land Policies for Growth and PovertyReduction,13 describes several intertwined factors that together undermine thepossibility of the land sales market working well for the poor. They include:

• Imperfections in financial and other markets;• Policy distortions, such as subsidies, that increase the returns to land, and

thus are capitalized as higher land prices. Intentionally or not, these distor-tions tend to favor wealthier and well-connected interests, thus increasingtheir power vis-à-vis the poor;14

• Land speculation, particularly in countries where there are few other repos-itories for wealth;

• Limited access to outside credit for land purchases; and• Transaction costs.15

In summary, the empirical evidence is fairly positive that lease markets offerthe rural poor an opportunity to access land, but sales markets in general do not.Thus a difficult policy question arises: What approach to sales markets is appro-priate to enhance access of the rural poor to land? One possibility is to do nothing; another is to oppose sales market development outright. But because inpractice land sales will go on anyway, crafting a responsible policy approachacknowledging this reality is preferable to pretending that sales markets do notexist or opposing market development outright.

To this end, the third part of this chapter suggests policy approaches that willhelp poor people access land through market purchases to the extent possible.Legal rules can strengthen property rights and make markets more efficient whenthey are clear and transparent and they reduce transaction costs. Specific inter-ventions, such as preferential purchase rights and public outreach, can be directlytargeted at helping the poor operate in a market environment. It is important toconsider the proposals made below in light of customary traditions and informalpractices (see section 4.4), and to combine them in a program that makes the mostsense for the country in question.

13 World Bank, Land Policies for Growth and Poverty Reduction, World Bank PolicyResearch Report (World Bank 2003).14 A highly visible example of such a policy distortion can be found in the United States,where many farm subsidies are paid based on gross output; thus the bigger the producerthe more subsidy money. As a result, 10 percent of the farms received 61 percent of thesubsidies in 2000, with the subsidies being “a chief source of operating capital for largeoperators to expand their holdings, often by buying out their smaller neighbors.” Eliza-beth Becker, Far From Dead, Subsidies Fuel Big Farms, N.Y. Times A1 (May 14, 2001).15 See World Bank & Deininger, supra n. 1, at 94.

A Framework for Land Market Law with the Poor in Mind 111

4.3 A Framework for Land Market Law with the Poor in Mind

This section presents the wide range of topics that, taken together, comprise thelegal framework for a land market. Each topic is explored in depth to determinewhat legal rules related to it can best improve land access for the poor. The rec-ommended legal rules are not absolutes, of course—they must be shaped to thecontext of the country in question—but hopefully they will be a useful practicalroadmap for making land markets work for the poor.

The topics here are grouped into three policy categories: establishing adequatetenure security; making the market a more efficient place to acquire land rights;and pursuing strategies to help the poor access land in a market environment.Those topics that fall into more than one policy category are discussed under thecategory where they play their most significant role.

When considering the needs of the legal framework for a land market that helpsthe poor, it should be kept in mind that, in addition to land-specific rules, generallegal rules significantly affect the ability of the land market to work as intended.The rule of law, contract law, and conflict resolution are among the areas usuallyguided by general legal rules that impact land markets.To illustrate the importanceof these rules: Suppose a farmer wishes to purchase a land parcel from his neigh-bor to expand his farm. If the contract law governing the creation and terminationof rights and obligations is inadequate or unclear, the farmer must expend moreresources in both time and money to ensure that his land purchase is legally validand the contract terms are effective and enforceable.This extra expense and incon-venience could lead the farmer to decide not to enter into the deal at all. Thus, heloses an opportunity to increase his income and standard of living, the seller losesa chance to receive sales proceeds to use in other business or personal endeavors,and the economy suffers from a missed development opportunity.

4.3.1 Establishing Adequate Land Tenure Security

Security of tenure is a precondition for a working land market. Rights to landmust be publicly recognized, enforceable, and not arbitrarily violated. Adequateland tenure security will benefit all land market participants, including the poor,who have fewer resources to acquire and defend land rights in insecure tenureenvironments. The importance of tenure security to the ability of the poor toaccess land is shown by the case of Ethiopia. Ethiopia has historically beenplagued by tenure insecurity, with endless litigation over land rights and evictionof peasants from their landholdings. One study of Ethiopian agriculture suggeststhat tenure insecurity is the chief obstacle to improving the productivity of poorfarmers, mainly sharecroppers.16

16 See Nega et al., supra n. 12, at 11.

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As discussed below, tenure security can be bolstered through improvements inthe rule of law; recognition of general property rights; effective conflict resolu-tion systems; careful definition and limits on the state’s power to take privateland; and effective documentation of land rights.

4.3.1.1 The Rule of Law

Legal rules related to land markets will not be effective if the legal system as awhole is not a reliable and effective instrument for acquiring and protectingrights. This is what the rule of law provides.17

The rule of law can be defined as an approach to governance and the orderingof relationships between parties in which formal law (1) supplies the guidingrules for allocating resources, resolving conflicts, and rendering justice; and(2) is generally adhered to and can be relied upon by the population to producepredictable outcomes. Laws in a rule-of-law system should be public knowledge,clear in meaning and applicable to everyone.18 The power of the rule of law comesfrom the fundamental belief the citizenry places in the fairness and effectivenessof the law, which leads most people to respect and follow it and to demand thatothers do the same. The legal system must have credibility in the eyes of the pop-ulation. Does the law address their needs and problems? Can people rely on lawwhen conducting business? Do they look to the law for guidance in the event ofa problem? Do they believe that, in a contentious situation, the law will usuallybe applied in a fair and reasonable manner despite disparities in the relative economic, political, or social power of those affected?

The rule of law has received significant attention over the past decade for goodreason. Societies in which the rule of law is an operational principle have led theway in broad-based economic development. Conversely, where the rule of lawdoes not function well, other systems will fill the vacuum. Sometimes these systems perform reasonably well, but too often they are inefficient, imposeexcessive burdens on weaker actors such as the poor, or are geared to servingwell-connected interests. Societies where the rule of law is weak suffer from rent-seeking by bureaucrats, other forms of corruption, and low public confidence ingovernment and other institutions. Plunder of the public treasury, extortion ofsmall business, and private “enforcement” of disputes are tangible signs that therule of law in a particular setting is weak.

Developing an operational rule-of-law system must come from within a coun-try. Leaders must submit to being ruled by the law. The societal mindset about the

17 In addition to its importance for tenure security, the rule of law is important to improv-ing market efficiency (see infra section 4.3.2) and implementing measures specificallytargeted to help the poor gain access to land (see infra section 4.3.3).18 Thomas Carothers, The Rule of Law Revival, 77 For. Aff. 95(12), 1 (March/April 1998).

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utility of law and the good it can bring may need changing. Though such changesdo not happen overnight, they are necessary if the legal framework is to becomeoperational for any purpose, including improving land access for the poor.

The following principles and approaches should be explored in attempts toimprove the rule-of-law environment:

• The law must be fair. A major characteristic of fairness is that the lawshould apply equally to all, regardless of their public connections or privatepower.19 Fair laws usually come out of participatory democratic processesbecause there the range of interests represented and the attendant publicitymake it harder to favor elites and special interests at the expense of othersin the society.

• The law must effectively address people’s economic and social needs. Lawsthat do not do this will not be followed. This requires legislation that is notonly proactive but that legalizes what people in practice are already doingfor themselves.20 In Sri Lanka, for example, the government has issued per-mits recognizing encroachments onto state-owned forest land by some600,000 poor people.21 If this had not been done the people would have stillpossessed the forest land in practice but would have used it extralegally.

Similarly, there is often a disconnect between what law drafters and pol-icymakers want the law to do and what the law can do. Law can take thelead in pulling society forward, but if it leaps too far ahead, it will fail.

• Strengthening law-related institutions is important to make them more “competent, efficient, and accountable.”22 Government officials should beprofessional and customer-oriented, receive adequate salaries to minimizetemptation to engage in corrupt activities, and be held accountable for theiractions.

• Criminal prosecutions, high-value civil court judgments, and other visibleexamples of the law’s triumph over the powerful and the corrupt can bol-ster the average person’s belief that the law can render a correct and justresult.

19 Tim Hanstad, Introduction to Agricultural Land Law Reform in Legal Impediments toEffective Rural Land Relations in Eastern Europe and Central Asia: A Comparative Per-spective, World Bank Technical Paper No. 436, 1, 8 (Roy Prosterman & Tim Hanstad, eds.,World Bank 1999). 20 Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West andFails Everywhere Else 161–62 (Basic Books 2000).21 R. M. K. Ratnayake, paper presented to World Bank Regional Workshop on Land Issuesin Asia, Country Case Study: Sri Lanka 11 (Phnom Penh, Cambodia, June 3–6, 2002)(copy on file with RDI).22 See Carothers, supra n. 18, at 3.

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Building a rule-of-law environment is an ongoing process measured by incre-mental improvements. Countries seeking to apply rule-of-law principles shouldnot insist that rule-of-law reform be complete and deem progress short of com-pletion as not worthwhile or an outright failure. In fact, no country has achieveda complete rule-of-law environment, but incremental improvements to achieverule-of-law principles are valuable and will help make legal rights affecting thepoor more usable and enforceable.

4.3.1.2 Recognition of General Property Rights

Land is a particularly important form of property for economic, social, andcultural reasons, and has unique features as a fixed object. Some special rulesare therefore needed to address its importance and unique nature. At the sametime, land is but one type of property: among other types are movable property(such as vehicles), businesses, information, and intellectual property. The legalattributes of all forms of property, including land, can be articulated to a sig-nificant degree by the same set of general rules: Only the special features ofeach type of property require unique treatment. Even in countries with landcodes, property rights to land are defined in large part by the general legalframework.

In the general legal framework, the major set of rules necessary to identify andprotect land rights must be based on the fundamental recognition of propertyrights. This legal recognition is often stated in civil codes or constitutions as theright of property owners, at their discretion, to perform any actions with respectto the property that are not contrary to a law or other legal act (such as a validcontract) and that do not violate the legal rights and interests of other persons.23

Common rights to property also are often recognized in the legal framework, asthey are in the Mozambique Civil Code.24 This general legal recognition of property rights as applied to the holder of a land right would allow the holder:

• To possess the land in accordance with the right; rights that give their holdera fuller sense of ownership would also be more secure;25

• To use the land right as the holder sees fit, subject to reasonable state regulation;

23 For example, the Civil Code of the Russian Federation, art. 209, §2 (Nov. 30, 1994).24 Maria de Conceição de Quadros, paper presented at the World Bank Regional Work-shop on Land Issues in Africa & the Middle East, Country Case Study: Mozambique 8(Kampala, Uganda, Apr. 29–May 2, 2002) (copy on file with RDI).25 See Nega et al., supra n. 12, at 19.

A Framework for Land Market Law with the Poor in Mind 115

• To harvest the crops on the land or to take any other income or profit fromit; and

• To sell or lease the land.

A second important legal concept needed in the broader legal frameworkrelates to the general inviolability of the property right: Property rights cannot besimply annulled or taken away, by either the state or other private parties. The lawshould provide for termination of a property right only through a freely con-cluded contract, to meet financial (or perhaps criminal) liabilities, or pursuant tothe state’s power to take a property right for social needs.26

4.3.1.3 Conflict Resolution

A poor farmer who acquires land rights through the market must be able toenforce these rights. Otherwise, the farmer’s confidence in the security of hisrights will be low, and he will not make the best use of his land. For the most part,land disputes are addressed by general conflict resolution systems, though land-specific systems also exist.

The legal framework for a conflict resolution system, whether general or land-specific, should incorporate the following components so as to meet the needs ofthe population in general, including the poor, who access land through marketmechanisms:

• The legal authority of the conflict resolution system should be defined,including its power to interpret law, make factual and legal determinations,issue rulings and judgments, and enforce compliance with court orders.

• The legal framework should identify the different venues of conflict reso-lution, most notably the judicial system with its different classifications ofcourts. The law should also refer to administrative, arbitration, and media-tion forums. For each of these venues legal authority must be defined.

• The conflict resolution system must deliver fair rulings in line with legalprinciples. Two measures can help. First, judges, arbitrators, and other deci-sion makers should have adequate professional training, receive adequatesalaries, and be subject to dismissal for corrupt practices. Second, the system should be thoroughly transparent; public court proceedings andpublished court rulings both serve this goal.

• The ordinary person must have access to the system. Access requires phys-ically convenient conflict resolution venues, reasonable fees to access the

26 Zoning and land use regulation would not fall under this general inviolability principle:they require special treatment in the context of land law itself.

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system, and a system that is navigable in most cases without the need forexpensive legal counsel.

• The system should hear conflicts, deliver rulings, process appeals, andensure timely and efficient compliance with rulings.

• Alternative dispute resolution models, such as third-party mediation andarbitration, can play an important role in promoting access and efficiency.These models are often cheaper to utilize and can be speedier in resolvinga dispute than going to court.

• In some countries traditional customary forms of conflict resolution have avaluable role to play. In Mozambique, for example, land conflicts arebrought before customary institutions and judicial and community tri-bunals; formal law recognizes their legitimacy.27 In villages in the KyrgyzRepublic, elders act as mediators to settle land-related disputes.28

On a practical level, which dispute resolution options are most likely to givethe poor meaningful access to justice? It will be those options that are physicallyaccessible, do not demand high fees, and deliver legally sound rulings in a timelymanner. Customary forms of conflict resolution and mediation and arbitration aremost likely to meet these criteria. By contrast, dispute resolution through courtsis frequently time-consuming, expensive, and intimidating, while administrativerulings may not be legally sound, especially when the State is one of the partiesto the dispute (though this latter problem may be tempered by a right to appealadverse administrative decisions).

4.3.1.4 State Seizure of Private Land Rights

The ability of governments to acquire private land for public purposes against thewill of the landowner is a necessary state power, though at the same time it is asignificant infringement on private land rights. Too often governments seize landfor reasons that cannot be justified; the poor and relatively uninformed are typi-cally the ones who suffer as a result.29 Moreover, land that can be confiscated easily and cheaply by the State will never achieve the full value as a marketablecapital asset that it would achieve in an environment where tenure is more secure.

27 See de Quadros, supra n. 24, at 7.28 World Bank, Legal Rights to Land for Rural Residents in Kyrgyzstan 1 (unpublishedreport, World Bank 2003) (copy on file with RDI).29 For example, the U.S. State of Mississippi threatened to use its sovereign power toforcibly acquire private land for a truck manufacturing plant. As one of the aggrievedlandowners put it, “There’s 15 of our families right around here, and none of them wantto live anywhere else. But then the state comes in and pushes us around and tells us they’regoing to turn our land over to a private company. It’s not right.” David Firestone, BlackFamilies Resist Mississippi Land Push, N.Y. Times A20 (September 10, 2001).

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A legal framework for land markets that promotes land access for the poorshould address two major issues related to state seizure of private land rights:

1. Reasons for which the State has legal power to terminate private land rightsshould be carefully defined and limited.30 The primary reason should be toserve specified important public needs, such as transportation corridors andeducational facilities. Other possible reasons might be as punishment forcriminal acts and for urgent public necessity in emergency situations, suchas a war (which should be rare). Seizing land for violation of land use rulesand for economic planning, as provided for in Ukraine’s Land Code,31 isnot acceptable. Seizure for reallocation to private parties is generally notacceptable, since the power would most likely be used to benefit powerfulprivate interests, though an exception could be made to accommodate landreform mechanisms in certain situations.

2. The law should establish a process for the State to take private land that isbased on the following principles:

• The State must pay the landowner full market-based compensation at thetime of the taking, or earlier.

• The State should exhaustively explore ways to meet the need withouttaking land before proceeding with the taking option.

• The private land right should be terminated only through a judicial pro-cedure determination that the stated need for the taking is of sufficientpublic importance and that the compensation is sufficient.

• The process should provide sufficient notification to the private partiesconcerned and permit them to fully participate in hearings and other procedural steps.

4.3.1.5 Documenting Land Rights

For a land right to be valid, other people must recognize it as legitimate. Thismight be as simple as neighboring land users acknowledging each other’s landrights in a manner they all agree on. Such informal systems do bring benefits topoor people, as can be seen in the active market in untitled land in Uganda.32

30 Unfortunately, in 2005, the United States Supreme Court essentially eliminated thislimitation from the U.S. Constitution in its controversial ruling in Kelo v. City of New London 125 S. Ct. 2655 (2005).31 Land Code of Ukraine, arts. 143 and 151 (Nov. 15, 2001).32 R. Mwebaza & R. Gaynor, Land Sector Analysis: Land Market, Land Consolidation,and Land Readjustment Component 16 (unpublished report, Govt. Uganda 2002) (copyon file with RDI).

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However, the greatest economic power of a land right—its power to create capital—is based on the right being recognized by the world at large, not justlocally, in such a way as to manifest its capital-creating attributes.

Having land rights recognized by the world at large requires that they be for-mally documented in a way that allows outsiders to access the information.This is not easy to achieve, and there are pitfalls. If people who either hold orwish to acquire land rights view the costs of participating in the formal systemto be higher than the costs of a less-formal method of recognizing rights, theformal system will fail. Also, if the formal system mandates results that bearno relationship to the reality of how rights are formed in fact, the well-connected can usurp the rights of the poor, and the formal system will causepositive harm.

To minimize chances for failure, the following ideas should be incorporatedinto the process for formalizing property rights:

• The system must convert into formal property the land rights that exist inpractice, though they may not be provable by chains of title or other con-ventional means.33

• Invariably, there will be multiple claims to the same land parcel or otherland disputes. These claims and disputes must be settled through a processand in a manner that the affected parties will accept as legitimate and uti-lize. This could involve setting up a specialized mechanism or using anapproach rooted in customary norms.

• The system must be low in cost, administratively easy to navigate, andphysically accessible to poor people.

• The system should move toward a common language to characterize landrights, though this will be achievable only over time.

• The system must recognize and formalize pre-existing rights.

The two prevalent formal systems for documenting land rights in developedcountries are title registration (Europe, Australia, and most of Canada) and deedregistration (United States).34 While country strategies to document land rightsmay seek to establish one of these systems (probably title registration), how thisis done will be different for each country.

33 See de Soto, supra n. 20, at 156–57 and 171–73.34 Leonard Rolfes Jr., paper presented at the World Bank Regional Workshop on LandIssues in Central & Eastern Europe, Making the Legal Basis for Private Land RightsOperational and Effective 30 (Budapest, Hungary, Apr. 3–6, 2002).

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4.3.2 Increasing Land Market Efficiency

Increasing the efficiency of land markets by reducing economic barriers andmaking it easier for people to carry out market transactions in land should makeland markets more useful for poor people. The alternative—inefficient marketswith high transaction costs and cloudy rules—seems unlikely to help the poor.Typically such conditions work to the advantage of the wealthy, the influential,and the sophisticated market participant.

This section offers legal rules to serve the efficiency goal in six areas: generalrights and obligations, land purchase and sale, land lease, land mortgage, trans-action costs, and land transfer by inheritance.

4.3.2.1 General Legal Rules Creating Rights and Obligations

Land markets are about willing parties agreeing to take on certain obligations inexchange for certain rights. For example, the lessor of a land parcel freelyobligates himself to permit the lessee to use the land for a certain period; inexchange the lessor gains the right to receive rent. The lessee, on the other hand,freely obligates himself to pay the lessor the rental amount, in exchange for whichthe lessee gains the right to use the land parcel for a fixed period. Since almost anyother type of property (car, television) could replace land in this simple example,it is clear that many requirements of a land transaction can be guided by legal rulesapplying to property in general, and do not require land-specific rules. Most juris-dictions recognize this, therefore it is important to examine general legal rightsand obligations to ensure they are adequate for application to the land market.

Three components of the general legal framework on rights and obligationsarising out of transactions warrant mention:

First, the legal framework should recognize the principle of freedom of contract.Under this principle, a person chooses whether to enter into a contract and withwhom. The two parties are also free to establish rights and obligations in thecontract by mutual agreement, as long as they are not contrary to law.

Second, the legal framework should include provisions on obligations, such as thebasic definition of an obligation (a requirement by one person to perform aspecified action, such as transferring land ownership, for the benefit ofanother person), remedies for failing to fulfill the obligation (such as enforce-ment of the obligation or monetary damages), and termination of the obligation (such as through its fulfillment or settlement if fulfillment is notpossible).

Third, the legal framework should contain guidance on how to conclude a con-tract, such as rules on when an offer to conclude a contract arises, how it maybe accepted, forms a contract can take (oral or in writing), and when

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contracts are deemed concluded. Similarly, the legal framework should iden-tify transactions that will be considered invalid in whole or in part, such asthose concluded under the influence of fraud, coercion, or threat. These pro-visions are of particular importance for the poor who have conflicts withdomineering or unscrupulous interests seeking to restrict their access andrights to land.

4.3.2.2 Land Purchase and Sale

As discussed in section 4.3.1, the poor have difficulty gaining access to landthrough purchase and sale. To minimize this difficulty, this section proposessome relatively simple legal rules that should make land purchase and sale under-standable to and usable by poor people while minimizing opportunities for coercion and fraud during the process.

Straightforward land purchase-sale transactions that are free of coercion andfraud should follow the following legal principles:

• Citizens must have a clear right to purchase land at freely negotiated prices.As a corollary, sales concluded under conditions of fraud or duress are void.

• The right of purchase must not be conditioned on special qualificationssuch as education or experience in agriculture. The poor can decide forthemselves whether they are capable of using the land effectively.

• The law should specify the essential requirements of a purchase-sale contract: identification of the parties, description of the land, statement ofthe purchase price, and terms of payment, all of which must be in writing.

• The government should not participate in setting the price or concluding thecontract unless it is a direct buyer or seller. This principle should be directlystated in the law to avoid any ambiguity that could be used as an excuse forintervention.

• Model sales contract forms should be drafted to facilitate transactions andprotect rights, though their use should not be required.

• There must be legal recognition of a land transfer. This would usually beaccomplished by a registration system maintained by a state agency, thoughthe type of legal recognition afforded by the system may vary.

4.3.2.3 Land Lease

As noted previously, leasing is the market mechanism that offers the greatestnear-term potential for increasing the access of the poor to land. As with pur-chase, lease rules work best for the poor when they are relatively simple to follow,contain only those features that are truly necessary to promulgate a lease trans-action, and limit the participation of bureaucracies.

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A legal framework for leasing that reflects such ideas should:

• Define what a lease is. A succinct definition is “the provision of a land par-cel by its owner to a lessee for use for a fixed time period in exchange forpayment.”

• Recognize the right of private parties to conclude lease agreements at freelynegotiated prices.

• State the elements required in a rental agreement: identification of the par-ties; description of the land parcel to be leased; start and termination datesfor the term of the lease; amount, form, and timing of rental payments; andthe possessory rights the lessee is receiving.

• Outline the conditions under which the lessor has the right to enter theleased land, for example, to inspect the property periodically. Such condi-tions could be included in the lease agreement, but statutory guidance maybe warranted to prevent lessors from excessively interfering with lessees’possessory rights.

• Outline the obligations of lessor and lessee for the upkeep of the land.Again, these obligations could be stated in the lease agreement, but statu-tory guidance may be warranted to protect the weaker party, whether lesseeor lessor.

• State whether all leases must be concluded in writing to be legally valid.Medium and long-term leases should be in writing, but in many situationsrequiring written contracts for short-term leases will not deliver a substan-tial benefit.

• Permit the lessee to sublease the land parcel if the lessor agrees. Subleasingadds flexibility, especially if primary leases are for long periods. Depend-ing upon the situation, such as if the State is the primary lessor, the lawcould make subleasing the default right of the lessee unless the lessorobjects, rather than requiring the lessor’s consent in advance.

• Provide the grounds and procedure for termination of a lease agreementbefore its term is completed. The grounds should be specific and exclusive,such as failure to pay the agreed rent and violation of obligations relatingto upkeep of the land. The procedure should require the lessor to notify thelessee of the violation and provide an opportunity for the lessee to remedythe violation before eviction proceedings commence.

• Identify circumstances that require registration of the lease agreement.A typical circumstance would be a lease of three years or longer.35

35 Food and Agriculture Organization, Good Practice Guidelines for Agricultural LeasingArrangements, FAO Land Tenure Studies 2, 7.25 (FAO 2001).

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Finally, many countries have regulated the landlord-tenant relationship in anattempt to improve the lot of mostly poor tenants. The regulations have includedthe prohibition on sharecropping, establishing rent controls, and converting ten-ancy into near-permanent land use rights. By and large such measures have notworked as intended, and in some cases they have instead lessened access to landby the poor. In India, “estimates indicate that the introduction of tenancy legisla-tion . . . was associated with the eviction of more than 100 million tenants, whichcaused the rural poor to lose access to about 30 percent of the total operatedarea.”36 Landlords will stop leasing land, conclude informal leases, and imple-ment other measures to avoid becoming subject to tenancy regulations.

Moreover, landlord resistance notwithstanding, tenancy reform is very diffi-cult to implement. Only in a few settings, such as in West Bengal, India, between1978 and 1984, has implementation been effective and landlord resistance over-come to the extent that tenancy regulation did help the poor. The West Bengalreforms, known as Operation Barga, consisted of registering sharecropper rights;converting these rights into permanent, inheritable rights; and helping share-croppers access production inputs and institutional credit in order to reduce theireconomic dependency on the landlords.37

In addition, tenancy regulation may be useful to address targeted social orequity issues. In Egypt, tenancy controls enacted in the 1950s provided tenantswith security of tenure and the legal right to pass their tenancy rights to theirheirs. When these controls were repealed in the 1990s, one result was that manylandlords began refusing to continue renting land to women-headed households,presumably for religious or cultural reasons, even though “women had been theeffective tenants for years and had met their obligations.”38

Overall, regulating the landlord-tenant relationship has not been a goodapproach to improving access of the poor to land, though in some settings it stillmay deliver benefits.

4.3.2.4 Land Mortgage

In many market economies, the institution of mortgage has provided ordinary peo-ple with a phenomenal ability to acquire land. For example, in 1999 nearly 69 mil-lion U.S. households owned their own homes.The vast majority of these households

36 See World Bank & Deininger, supra n. 1, at 116–17.37 Uday Shankar Saha & Mandira Saha, Case Study. Regulating the Sharecropping System: Operation Barga in de Janvry et al., eds., supra n. 2, at 232–33.38 Ray Bush, More Losers Than Winners in Egypt’s Countryside: The Impact of Changesin Land Tenure, in Counter-Revolution in Egypt’s Countryside: Land and Farmers in theEra of Economic Reform 185, 195 (Ray Bush, ed., Zed Books Ltd. 2002).

A Framework for Land Market Law with the Poor in Mind 123

were able to buy their homes only through loans secured by mortgages on the homesand associated land; they would not have been able to do so otherwise.39

However, can mortgage significantly expand land access for poor people indeveloping countries? There is little evidence to suggest that these people havebeen able to purchase land with borrowed money secured by mortgages on theland, but financing is needed to buy land, and the ability to mortgage land hasmade financing possible in many countries. There is little downside to creating alegal basis for mortgage lending; over the medium to long term, mortgages mayend up being useful in helping the poor access land.

The legal framework for mortgages should include the following components:

• Definition of mortgage: “A lien against property that is granted to securean obligation (such as a debt) and that is extinguished upon payment or per-formance according to stipulated terms.”40

• Priorityof the lender’s (mortgagee’s) claimto themortgaged landoverallothercreditors. Any exceptions to this rule should be of overriding social interest.

• Identification of the essential items in a mortgage agreement: descriptionof the land rights being mortgaged, information on the value of the land,description of the obligation being secured, conditions for discharge of themortgage obligation (repayment of the loan), and conditions that if violated(for example, default) permit the mortgagee to accelerate the debt repay-ment and commence foreclosure.

• Description of the conditions under which the mortgaged land can be fore-closed on, and the procedure for foreclosure.

• Confirmation of the legal right to borrow money to purchase land by usingthe land purchased as security for the loan.

Many jurisdictions seek to protect borrowers (mortgagors) from bank preda-tion by, for example, implementing long statutory grace periods for defaultinglandowners to come into compliance with the mortgage agreement, restrictingbank ownership of land, or requiring banks that acquire land by foreclosure to dis-pose of it quickly. The desirability of such measures must be weighed against thefact that they drive up the cost of capital for the poor and may lead banks to decidenot to make mortgage loans at all.

4.3.2.5 Transaction Costs

High or needless transaction costs can act as a serious impediment to the poorbeing able to use the market to access land. If transaction costs are too high the

39 See Rolfes, supra n. 34, at 17.40 Black’s Law Dictionary 457 (Bryan A. Garner, ed., 2d pocket ed., West Group 2001).

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poor will simply not do market deals, or will carry them out informally, with allthe risks and uncertainty that this entails. Drafters must be very cognizant of landtransaction costs when they design laws that affect land markets and shouldattempt to minimize these costs or shift responsibility for their payment to a moreable party (usually the State) if at all possible.

The following list of common transaction costs discusses how they can belessened in order to benefit the poor:

• Surveying and mapping fees. Because surveying and mapping fees oftenare so high that they amount to a significant fraction of land parcel values,they can impede land transactions. Several measures can help alleviate thisproblem. First, the law should not require overly precise mapping and sur-vey standards for agricultural land because the costs of excess precisionoutweigh the benefits. Second, if a land parcel has already been platted, thelaw should not require updated surveys when the land is transferred unlessthe boundary lines have been adjusted. Third, initial platting of land parcelsintended for use by the poor could be paid for by the State; even if plattingfees are objectively small, they still may be prohibitive for the poor.

• Appraisal fees. Appraisers can provide a useful service by giving a profes-sional assessment of a land parcel’s market price, but sometimes their feesare too high for the poor to pay. The legal framework could leave the needfor an appraisal up to the parties, rather than requiring appraisals in all market situations.

• Notary fees. Because these fees are often regulated by law, the law couldlower or eliminate them for transactions with, say, small land parcels thatare likely to be purchased or sold by the poor. Also, the benefits thatnotaries provide to the transaction process could be reviewed with an eye toeliminating their role if their contribution is not worth the cost.

• Registration fees. Fees for registration should be kept as low as possible soas not to discourage use of the registration system. Perhaps registration feescould be exempted for transactions involving small parcels of agriculturalland. Still, lowering registration fees should be weighed against the need forregistration systems to generate user fees. There is empirical evidence thatregistration systems in developing countries can survive off user fees,41 butit is unlikely that this is true in rural areas.

• Excise taxes on land sales. Requiring the parties to a land sales transactionto pay a tax in order to conclude the deal is a direct disincentive to market

41 Klaus Deininger & Gershon Feder, paper presented at World Bank Regional Workshopon Land Issues in Asia, Land Institutions and Policy: Key Messages of the Policy ResearchReport 15 (Phnom Penh, Cambodia, June 3–6, 2002) (copy on file with RDI).

A Framework for Land Market Law with the Poor in Mind 125

deals, and to reporting the true sales price. Although such taxes are com-mon in many developed economies, they clearly are problematic in devel-oping countries where the land market is underdeveloped or accurate landvaluation is an issue. There, the law should not insist on excise taxes on landsales. The State’s need for revenue will be much better met over the longerterm by facilitating market transactions that encourage investment in landand then taxing the resulting economic growth by other methods (incometax, sales tax on goods and services, and so on, and so forth).

• Administrative costs. Every contact with the state bureaucracy in theprocess of carrying out a land transaction imposes costs while creatingopportunities for rent-seeking. For example, in Ukraine citizens may pur-chase agricultural land only if they have agricultural education or experi-ence.42 Enforcing this rule necessarily entails that, for every transaction, astate regulator must verify that the purchaser or lessee meets the qualifica-tions. The law can do a great deal to eliminate such costs. Every proposedadministrative intervention into a land deal must be put to a severe need testand cost-benefit analysis. Only if the test is passed should an interventionbe called for by law.

4.3.2.6 Transferring Land Rights by Inheritance

Though inheritance is not a market transaction, it cannot be ignored because inmany settings it is the most common way to transfer land rights. For example, inmany countries of the former Soviet Union mostly poor pensioners own morethan half the private agricultural land. Proper rules for inheritance are crucial ifthese pensioners are to successfully pass their land to their children, many ofwhom are also economically insecure.

Inheritance of land is usually governed by the rules of succession that apply toproperty in general. The law should identify what is required for a legally suffi-cient will and the priority of beneficiaries in case a person dies without a will.The law may also require that certain people be designated beneficiaries, such asa spouse or minor children.

Inheritance law is an area where formal and customary law often diverge. InSri Lanka, a variety of informal inheritance practices are still used.43 Draftinginheritance legislation requires special attention to reconciling the formal lawwith customary norms.

42 Land Code of Ukraine, supra n. 31, at art. 130.43 See Ratnayake, supra n. 21, at 14–15.

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4.3.3 Special Efforts to Help the Poor Within a Market Environment

This section discusses interventions into the market environment that areintended to promote land access specifically by poor people: restrictions on mar-ketability of land rights, public education and legal aid, land taxation, homesteadand garden plots, public land auctions, and land reform.

4.3.3.1 Restrictions on Marketability of Land Rights

In a completely free market a land owner may sell land to anyone without restric-tion and may lease it to anyone for any time period, be it six months or fifty years.In certain contexts, however, targeted restrictions on land marketability may pro-mote access to land by the poor without causing undue harm to land values orinvestment incentives. As a corollary, during times of social and economic tran-sition the poor may be especially vulnerable to losing land access. This sectionexplores various types of market restrictions and offers guidance on the generalutility of each in broadening land access or forestalling reductions in access.

• Restricting purchase of land by foreigners. Wealthy foreigners could theo-retically buy up much of a developing country’s land, thus making itunavailable or too expensive for the indigenous poor and less well-off toaccess. Namibia has responded to this potential threat by passing a law pro-hibiting foreign acquisition of commercial farm land without permission ofthe government.44 While limiting the right of foreigners to purchase landwould probably promote access for prospective indigenous buyers in coun-tries where there is a foreign demand for land or significant domestic landpressure, it would do little in countries where there is no such demand.Also, limits on foreign acquisition should be weighed against the loss offoreign investment that may result.

• Preferential rights to buy or lease land. Some countries give preferentialrights to buy or lease land to co-owners, neighbors, or lessees of the land.Romania does so as to sale, while China’s Rural Land Contracting Law hasa similar provision as to farmers’ thirty-year use rights. A preferential pur-chase or lease right should provide broader access, and not unduly harmmarketability, if two rules are applied: First, the preferred purchaser or lessee must meet the landowner’s offer as to price and other contract terms.In other words, if a nonpreferred buyer is willing to pay a higher price than

44 Hifikepunye Pohamba, paper presented at the World Bank Regional Workshop on LandIssues in Africa & the Middle East, Namibia Country Paper: A Case Study on Land Issues2 (Kampala, Uganda, Apr. 29–May 2, 2002) (copy on file with RDI).

A Framework for Land Market Law with the Poor in Mind 127

the preferred buyer, the nonpreferred buyer should acquire the land. Sec-ond, the procedure for offering the land to the preferred right holder mustbe quick and simple. In Romania an owner who wants to sell land notifiesthe local administration, which then publicizes the opportunity to preferredpurchasers for forty-five days. Farmers do not consider this procedure to beoverly onerous.45

• Ceilings on ownership. Upper limits on the amount of land a person orentity can own are controversial. Proponents of ceilings argue that, in coun-tries with very little farmland relative to the number of people who needland, such as India and the Indonesian island of Java, restricting the amountof land a party may own makes the land base available to more people. Ceil-ings may also help prevent new consolidations of land after land reform, arole they successfully served in Japan and Korea after World War II.46 Morerecently, to prevent the reconsolidation of land ownership in the hands ofthe collective farms, Ukraine adopted a 100-hectare ownership ceiling foragricultural land until 2010.47

On the other hand, there are questions about whether ceilings in factresult in expanded access and whether owners can evade ceilings throughtransfers to relatives and straw men.48 Ceilings have also been cited asreducing land values, thus undermining the asset endowment of the poor.For instance, in Sri Lanka ceilings are said to have reduced land values by50 percent.49

Because the evidence is not definitive about whether ceilings work toimprove land access for the poor, two areas of guidance—one policy and theother legal—are offered for countries considering the use of ceilings to pro-mote land access. First, ceilings are probably most effective when imposed toprevent further consolidation of private land into larger and larger holdingsor to prevent the reversion of newly privatized land to its former controllers,as in the Ukraine example. They are less effective when used as a tool for thegovernment to take private land above the ceiling for redistribution.

45 Roy L. Prosterman & Leonard Rolfes, Jr., Review of the Legal Basis for AgriculturalLand Markets in Lithuania, Poland, and Romania, in Structural Change in the FarmingSectors in Central and Eastern Europe, World Bank Technical Paper No. 465, 110, 135(Csaba Csaki & Zvi Lerman, eds., World Bank 2000).46 See World Bank & Deininger, supra n. 1, at 125.47 Land Code of Ukraine, supra n. 31, at Transitional Provisions §13.48 Klaus Deininger, Gershon Feder, Gustavo Gordillo de Anda & Paul Munro-Farure,Land Policy to Facilitate Growth and Poverty Reduction, Land Reform, Land Settlement& Cooperatives 5, 12 (2003/3 spec. ed.).49 See World Bank & Deininger, supra n. 1, at 125.

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Second, no matter what the country, some parties will try to evade theceiling even if it does generally work. Such evasions threaten to confuseland records and at least partially defeat the intent of the ceiling. Theseproblems might be reduced by taking three steps:

(1) When a land sale is at the stage of being legally recognized by theState, an inquiry could be made as to the purchaser’s right to buy inlight of the limit. This inquiry should be carried out quickly.

(2) After a land sale is legally recognized, if it is discovered that theowner’s holdings exceed the limit, the sale should remain legal but theexcess land could be sold at public auction, with the owner retainingthe residual proceeds after auction expenses are paid.

(3) If a country institutes a ceiling regime, the law also should limit thelength of land leases. Otherwise a person who seeks land in excess ofthe ceiling could simply conclude a long-term lease and successfullyevade the law’s intent.

• Restricting land sales. Temporary restrictions on selling land may some-times be needed to prevent the market from serving as a mechanism thatreduces poor people’s land rights. For example, “In some CIS countries,managers of farm enterprises took advantage of the rural population’s lackof asset management experience to entice the new shareholders to sell theirland shares.”50 The result was a consolidation of land “in the hands of asmall number of farm bosses.”51 To avert this result, Ukraine adopted a tem-porary prohibition on agricultural land sales so that new land owners wouldhave time to become familiar with the market and thus make good decisionsfor themselves regarding their land assets.52

• Limits on length of leases. As a corollary to temporary restrictions on landsales, limiting leases to no more than medium terms (such as ten years) canalso preserve future access possibilities, though it may impinge uponinvestment. Lease term limits are particularly attractive in countries likeRussia and Moldova, where the weaker party is generally the relativelyimpoverished new land owner who receives a pittance from a former col-lective farm for the use of land, and who may well regret locking the landinto a long-term lease once land values rise. This is in contrast to more traditional developing countries, where the weaker party is usually the ten-ant and a lease term limit may be harmful to access.

50 See id. at 123.51 See id.52 Land Code of Ukraine, supra n. 31, at Transitional Provisions §15. The prohibition onland sales is set to expire in January 2007.

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4.3.3.2 Public Education and Legal Aid

A well-conceived legal framework governing land markets will be of little helpto the poor if they are not educated about markets and the law. For example, since1992 Mexican law has allowed ejido members to lease out or sharecrop their landto others.53 In Oaxaca State, however, research conducted in 2002 suggests thatmany ejido members still do not know about these rights and are not takingadvantage of them as ejido members are elsewhere in Mexico.54 This exampleshows that the poor need access to information about land markets and their legalrights and obligations as market participants. With more and better informationthe poor are more likely to use their talents and labor to acquire rights to land andmake wise investments in land that boost its productivity. Also, improved knowl-edge will better equip the poor to compete in an environment in which their needsare often not in accord with the wishes of powerful interests. Put another way,informing the poor about what their rights are, how they may be used, and whatbenefits they may bring is as important to an operational legal framework as theadoption of a substantive law.

Similarly, access to the advice and assistance of a lawyer or other legal spe-cialist could help the poor to better use the market to access land resources andto protect themselves from being coerced and manipulated by unscrupulous localofficials, landlords, and others.

Various models are in operation around the world for informing people abouttheir land rights and providing legal assistance. For example, in two Russianprovinces, law offices focus exclusively on helping the rural poor exercise theirnewfound rights to land (see Box 4–1). These offices publish articles in newspa-pers about land rights, hold town meetings, and provide direct assistance toclients, ranging from information consultations to representation in negotiationsand in court. In the Kyrgyz Republic, customary practice and formal land lawhave been brought together by a program to educate community leaders aboutland law and how to advocate for their communities. These leaders attend groupmeetings, discuss problems, and then engage with local governmental adminis-trators who—intentionally or not—are interfering with the exercise of privateland rights (see Box 4–2). In Kenya, a public outreach effort educates rural peo-ple about the value of land and urges small landowners not to sell. The effortincludes a series of billboards with the slogan “Selling wealth to buy poverty.”55

53 Agrarian Law of Mexico, art. 79 (Feb. 26, 1992).54 Jennifer Brown, Ejidos and Comunidades in Oaxaca, Mexico: Impact of the 1992Reforms, Rural Development Institute Reports on Foreign Aid & Dev. #120, 23–24 (RDIFeb. 2004) (copy on file with RDI).55 See http://www.ascleiden.nl/GetPage.aspx?datastore=1&url=/publications/publicatie449081047.

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Countries serious about making their law more effective in improving landaccess for the poor should strongly consider a legal assistance program.

4.3.3.3 Land Taxation

In theory, land taxation can potentially help the poor gain access to land throughthe market because its direct and visible economic effects on the taxpayer makeit an attractive way to manipulate behavior. However, there is a question whetherland taxation is an effective tool in practice to broaden land access.

There are two main types of land taxation. The first is taxation of land transfers,with the transfer representing the taxable event. Transfer taxes are customarilylevied either as a percentage of the transfer price or as a fixed amount based on a

Box 4–1. Legal Aid in Action: Vladimir Province, Russia

In the spring of 2001, several dozen workers at the former collective farm“Vtorovskoye”—nominally privatized in 1992 as a partnership—contactedattorneys at the Vladimir legal aid center. They had heard that members of aneighboring farm enterprise had received ownership rights to the land culti-vated by their enterprise and wondered why they had not.

Upon investigation, the legal aid center’s attorneys found that in 1992 thefarmland used by the former Vtorovskoye collective was scheduled to betransferred to its members in the form of land shares held in common. Furthermore, in 1994 the local district authorities had prepared land shareownership certificates for all members of former collective farms in the district and asked the managers of the reorganized farms to distribute thecertificates. But the chairwoman of the Vtorovskoye partnership, who wasalso a prominent local official, withheld the certificates, keeping them in asafe for nearly seven years.

Even after the chairwoman’s egregious action was brought to light, sheresisted the petitions of the land share owners and continued to withhold the certificates. The attorneys organized meetings with the owners to discusstheir options, but the meetings had to be held outside in middle of the Russian winter. Why? Because local officials barred the owners and lawyersfrom using the local meeting house, saying that “there was no need to disturb people . . . the less they knew, the quieter they lived.”

The lawyers then represented the owners in a court action to obtain the certificates. This finally forced the chairwoman to distribute the land sharecertificates to their more than 250 rightful owners.

Source: Rural Dev. Inst. Eighteen-Month Report 19 (Jan. 2001–June 2002).

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Box 4–2. Legal Aid in Action: The Kyrgyz Republic

With support from the World Bank’s Development Marketplace grant pro-gram, in 2002 the Land Rights Advocacy Project in the Kyrgyz Republicimplemented a model of legal aid and public information designed to takeadvantage of the close-knit communities and able customary leaders foundin Kyrgyz society. The project had two main components:

1. A process of providing rural people with information about their legalrights to land: Project personnel, who were themselves native to theareas in which they were working, distributed written materials andmade numerous presentations to groups of villagers about theirrights.

2. Direct efforts to resolve land-related problems: Project personnelorganized village meetings where local residents and leaders could talkabout land problems. If the assembled group at a meeting identified aproblem, it selected someone to take the lead in achieving a positive resolution. Those chosen usually already had a customary leadershiprole for which they had been selected by their peers. None were govern-ment officials. Thus, the local residents trusted these leaders to work ontheir behalf.

After the village meeting, the project personnel conducted training and dis-cussions with the leaders identified, answered questions, provided informa-tion, and followed the progress of complaints. Importantly, though, it wasthe leaders, in conjunction with the people they spoke for, that actuallyengaged state bureaucracies, local farm bosses, and others who were inter-fering with land rights.

Through the project, hundreds of problems were solved on behalf ofrural, mainly poor, residents of the Kyrgyz Republic. They included over-charges for registration of land titles by the state registration authority,refusal to allocate former collective farm land to legally entitled beneficiar-ies, loss of access to land by a woman due to divorce, unauthorized ease-ments, and disputes concerning use rights to pasture land.

Source: World Bank, Legal Rights to Land for Rural Residents in Kyrgyzstan (unpublished report, World Bank 2003) (copy on file with RDI).

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government-established land valuation (which may or may not be related to mar-ket value). Hungary is an example of a country with a land transfer tax.56

Taxation of land transfers has been called “the ultimate ‘anti-market’ tax”because it drives up the price of conducting a transaction and thus discouragesmarket activity.57 Moreover, land transfer taxation could drive transfers into theinformal sector in an effort to avoid the tax. This result would not serve the interests of the poor to obtain legally valid, widely recognized title that wouldgive them secure property rights and expand their access to credit. For these rea-sons, it is unlikely that taxation of land transfers can be used effectively to helpthe poor gain access to land.

The second major type of land taxation, sometimes called direct taxation,58 isa fixed amount based upon the land’s market value, productivity, use classifica-tion, quality, or other factors. Under direct taxation the tax obligation is continuous (rather than arising upon the occurrence of a particular event, such asa transfer), and is usually expressed as an annual amount to be paid. Most coun-tries employ some form of direct land taxation. In Russia, for example, tax rateson land are set for each region by federal law and are calculated in rubles perhectare based on soil quality and location.59 Indonesia employs a flat tax on landand buildings, calculated as 0.5 percent of land value.60

In theory, direct land taxation could be modified in a variety of ways to helpimprove access through market means. Land could be taxed progressively to dis-courage speculation and inefficient land use; the result could be to expand oppor-tunities for the poor to buy the land, lease or sharecrop it, or at the very least workon it for a wage. In the Philippines, for example, local governments have the ability to impose a tax on idle lands.61 Also, eliminating taxes for the smallestholdings or for a certain time period after acquisition would give the poor an economic advantage that could enhance their access to land. In Georgia, forexample, people who receive agricultural land do not have to pay taxes on it forfive years, and people who own less than five hectares are exempt from land

56 Richard M. Bird & Enid Slack, Land Taxation in Practice: Selected Case Studies 130(unpublished report 2002) (copy on file with RDI).57 Richard M. Bird & Enid Slack, paper presented at the World Bank Regional Workshopon Land Issues in Central & Eastern Europe, Land and Property Taxation: A Review 32(Budapest, Apr. 3–6, 2002), http://lnweb18.worldbank.org/ESSD/essdext.nsf/24DocByUnid/DC58024CA1B418CE85256BE20066B2C8/$FILE/enidslack_taxation_pdfcomplet.pdf (accessed September 3, 2004).58 See id. at 31.59 See id. at 131.60 See World Bank & Deininger, supra n. 1, at 169.61 See Bird & Slack, supra n. 56, at 76.

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taxation without time limit.62 In Kenya, agricultural landholdings of less thantwelve acres are not taxed.63

Still other ways to modify direct land taxation are to provide owners with tax-related benefits for selling land to prescribed beneficiaries or for providingdefined types of access. For example, a landlord could have a portion of the landtax waived for each land lease concluded with a certified member of the targetbeneficiary group, with a bonus added for longer-term leases. Alternatively, alandlord could receive a tax benefit for subdividing land (perhaps informally) andleasing it in government-recommended amounts to very poor people for whomeven a garden-sized parcel is helpful.

But do these approaches to modifying direct land taxation in practice help thepoor access land? Experience with progressive land taxation in Argentina,Bangladesh, Jamaica, and other countries showed limited success, largelybecause of valuation difficulties and opposition from large landowners.64 Theefficacy of encouraging land owners to lease land to defined beneficiary groupsis difficult to predict. It might also be too administratively complicated to imple-ment effectively, and could have unintended consequences (such as excessivesubsidies for large landowners) that would harm the poor.

More promising are approaches exempting new land owners from taxation fora defined time period, as in the example from Georgia, or exempting small landparcels from taxation altogether. These seem more likely to provide benefits tothe poor, to be feasible to implement, and to reduce the risk of negative unin-tended consequences.

When designing the legal framework for any of these land taxation schemes topromote land access, the following issues should be considered:

• Negative impact on the poor. Any land tax proposal should be carefullyassessed to ensure that it does not end up hurting the poor. India at one timeinstituted a significant land tax that harmed the poor and led to land con-solidation.65 In Russia today the majority of commercial agricultural landis farmed by former collective farms but is owned by poor rural people. Ifa land tax were introduced to promote more productive use of land, poorowners might have to sell out and thus lose an asset that offers them economic hope.

62 Law of Georgia on Making Amendments and Additions to the Tax Code of Georgia,secs. 19(l) and 19(v) (December 31, 2003).63 See Bird & Slack, supra n. 56, at 92.64 See World Bank & Deininger, supra n. 1, at 169.65 See id. at 168.

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• Land appraisal. Market appraisal of land is integral to most developedland taxation systems but can be difficult to achieve in fledgling marketenvironments. Also, appraisal of land values carries with it an element ofsubjectivity that can lead to equity concerns. Some jurisdictions addressthese problems by using measurements of land quality “depending on thesoil type, distance from major roads, and irrigation facilities” as the basisfor taxation.66

• Land tax administration. The cost of obtaining information on land values,and of administering a land tax system generally, can be relatively highcompared to the revenue generated. It has been argued that land taxation indeveloping countries “will in all likelihood be so poorly administered [thatit will] produce neither equity, efficiency, nor revenue.”67 This negative out-look, expressed over thirty years ago, may be significantly tempered byusing land quality assessments or modern market-based mass appraisaltechniques as the basis for taxation. Still, the issue requires attention.68

• Inappropriate avoidance of taxes or utilization of tax privileges. Whentaxes are imposed to compel certain behavior, there is always the risk thatthe taxpayer will seek ways to evade payment. Similarly, when tax prefer-ences are granted to special beneficiaries, nonbeneficiaries may concoctschemes to take advantage of the preferences.

Finally, the discussion here should be considered in light of the fact that therehas been very little recent research on whether and how land taxation can becrafted to expand land access for the poor. Specialists in land taxation devotemost of their attention to revenue generation and fiscal federalism issues, with afocus on urban land.69

4.3.3.4 Homestead and Garden Plots

Internationally, there is strong evidence of the value of homestead and gardenplots to the rural poor. For example, in Indonesia pekarangan plots range in sizefrom one-tenth to one-fifth of an acre, yet on this small amount of land, house-holds can generate up to 20 percent of their income and about half their caloric

66 Jonathan Skinner, If Agricultural Land Taxation Is So Efficient, Why Is It So RarelyUsed? 5 World Bank Econ. Rev. 113, 130 (1991).67 Richard M. Bird, Taxing Agricultural Land in Developing Countries 223 (Harv. U. Press1974).68 See Skinner, supra n. 66, at 125–129.69 See Bird & Slack, supra n. 56.

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needs.70 In Russia owners of dacha, household, and other small plots cultivateonly about 6 percent of the agricultural land yet generate over 50 percent of thetotal value of the country’s agricultural production.71 These plots probably prevented millions of cases of malnutrition in Russia over the past decade. More-over, access to very small amounts of land may sometimes be better for the poorthan attempts to create full-size family farms. This is likely to be the case when apoor family relies on several disparate income sources for household support,such as direct cultivation, wage labor, entrepreneurial self-employment, andmigration.72

Since small plots have such potential to provide significant nutritional andincome benefits, their formation should be encouraged, or at least allowed. Froma market perspective, eliminating both legal limits on subdivision and restrictionson the minimum size of a land plot should help facilitate access.

4.3.3.5 Auctions of Public Land

Auctioning public land is a market-based method of transferring public land thatmay contribute to improving land access for the poor. Land auctions have provenuseful as a way to distribute state-owned land in general. For example, in 1998the Russian province of Saratov carried out sixty-eight auctions over a six-monthperiod, with hundreds of land parcels being privatized or leased out for long peri-ods. The auctions were successful because transactions were concluded quickly,local governments supported them because they retained the auction proceeds,and the process was transparent.73 Another example can be found in China, whereseveral localities have successfully auctioned undeveloped but reclaimable arableland.74

To maximize the possibility that public land auctions can help give the pooraccess to land, the following principles should be followed:

• Land should be auctioned in relatively small parcels.• Local, relatively land-poor residents should be given priority to participate

(though there may be a “straw man” issue). • Successful bidders should not have to pay the entire purchase price up front

but may make installment payments over several years.

70 Robert Mitchell & Tim Hanstad, Small Homegarden Plots and Sustainable Livelihoodsfor the Poor, Livelihood Support Programme Working Paper, 4, 8–9 (FAO 2004).71 See Rolfes, supra n. 34, at 26–27.72 See de Janvry et al., eds., supra n. 2, at 6–7.73 See Rolfes, supra n. 34, at 22–23.74 Tim Hanstad & Li Ping, Land Reform in the People’s Republic of China: AuctioningRights to Wasteland, 19 Intl. & Comp. L. J. 545, 546–548 (1997).

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4.3.3.6 Land Reform

No inquiry into increasing land access for the poor is complete without dis-cussing the question of land reform and the prospects for further progress. Eachof the main scenarios for land reform—redistribution of private land, and priva-tization and decollectivization of farm land held collectively—will be addressedin turn.

In the classic land reform situation, a relatively small number of private actorsown a disproportionate amount of a country’s land, often as absentee landlords,while a large percentage of people dependent upon agriculture are tenants orlandless laborers who do not own or have owner-like rights to the land. Somehave no access to land at all. This inequitable distribution pattern plagues manycountries, including the Philippines, Brazil, Pakistan, and India. In Brazil, forexample, in 2000 “the wealthiest 5% of the farmers owned 69% of the nation’sagricultural land, while the poorest 40% owned only 1.2% of the land.”75

Landlessness and land inequality problems have been successfully addressedin some settings through the use of land reform. Post-World War II land reformsin Japan, South Korea, and Taiwan have been widely cited as successes and credited with creating a solid foundation for economic growth.76 More recently,in the Indian State of West Bengal effective implementation of anti-eviction andrent control protections for sharecroppers (50 percent of the crop if the landlordsupplies the inputs) and redistribution of ceiling-surplus lands to poor house-holds have been credited with “a positive impact on agricultural production,poverty alleviation, and economic growth.”77 In other settings, however, less welldesigned and less effectively implemented measures aimed at similar objectiveshave created market distortions and perverse incentives that in the long run havenegatively affected access of the poor to land. For example, threats of tenantsacquiring more secure property rights have resulted in mass evictions in severalLatin American countries78 and in parts of India.79

75 World Bank, Reaching the Rural Poor: A Renewed Strategy for Rural Development 33(World Bank 2003).76 Roy L. Prosterman & Jeffrey M. Riedinger, Land Reform and Democratic Development124 (Johns Hopkins U. Press 1987).77 Tim Hanstad & Jennifer Brown, Land Reform Law and Implementation in West Bengal:Lessons and Recommendations, Rural Development Institute Reports on Foreign Aid &Development #112, 9 (RDI 2001) (copy on file with RDI).78 Klaus Deininger & Gershon Feder, Land Institutions and Land Markets, World BankPolicy Research Working Paper No. 2014, 22–23 (World Bank 1998).79 P. S. Appu, Land Reforms in India 75–79 (Vikas Publg. H. Pvt. Ltd. 1996).

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The most visible land reform mechanism has been State-sponsored forcedredistribution from the landed to the landless. For such an approach to work,the legal framework must provide reasonable compensation to those losingland, involve beneficiaries in implementation, and use speedy field-based adju-dication mechanisms.80 The successful examples of this approach have beenfew over the past twenty-five years, due to the political difficulty of imple-menting such a program. Most attempts have not involved any significant com-pensation; landowners have strongly resisted for this and other reasons. Forexample, in the Philippines only 3.2 percent of the households targeted underthe 1970s–1980s land reform program actually received land, and only 35 per-cent of the land owners received compensation.81 This does not necessarilyindicate that the redistribution-with-compensation approach should be aban-doned, but it does suggest that the approach can be successful only in fairlyunique settings.

Another mechanism more recently introduced to address the classic situationis market-assisted land reform (MALR). In general terms, MALR seeks to ener-gize the rural land market by addressing both supply and demand issues. On thesupply side, MALR tries to eliminate policies that distort the market and distractowners of un- or underused land from making rational economic choices to sellthe land. Special subsidies for large landowners are one example. If these distor-tions can be eliminated, so MALR theory goes, the result should be an increasein the amount of land available for purchase. On the demand side, MALR offerscash grants or other forms of financing that poor people can use to buy land onthe market from a willing seller.82 It is important that adequate supply be madeavailable; otherwise financing of land acquisition will simply push up the landprice without increasing access by the poor.83 Ultimately, because MALR

80 See Prosterman, supra n. 76, at 194.81 Gilberto M. Llanto & Marife M. Ballesteros, paper presented at the World BankRegional Workshop on Land Issues in Asia, Country Case Study: Philippines 9 (PhnomPenh, Cambodia, June 3–6, 2002).82 In some contexts, such as South Africa, financial support has been given not just forland acquisition but also for general development of farm production, which seems toencourage support recipients to bid down the price of land so as to use the remaining fundsfor other needs.83 Klaus Deininger, Making Negotiated Land Reform Work: Initial Experience fromBrazil, Colombia, and South Africa, World Bank Policy Research Working PaperNo. 2040, 16 (World Bank 1999); Land Policy Group, The Theory Behind Market-Assisted Land Reform, http://lnweb18.worldbank.org/ESSD/ardext.nsf/11ByDocName/TopicsLandPolicyandAdministration.

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requires willing sellers,84 it is not realistic to expect the approach by itself to facil-itate substantial near-term redistribution, though it likely has a role to play as oneof several strategies to improve land access for the poor.

The second land reform model—privatization and decollectivization—hasbeen underway for over a decade in most of the post-communist states of Europeand the former Soviet Union. A similar process also has been underway in Mexico,where since 1992 reforms have allowed members of ejidos and comunidades toreceive certificates to possess individual land parcels.85 These possessory rightscan be leased and sometimes sold. Ejido members can also take the next step andprivatize the ejido’s land in full or in part.86

The privatization/decollectivization effort has delivered some positive resultsover the past decade. Well over half of the agricultural land in the former com-munist countries of Europe and the former Soviet Union has been privatized, withvirtually the entire rural population—including the poor—receiving rightsto land. In several of these countries rural families received rights to distinct plotsthey have been actively cultivating for years.87 In Mexico many ejido andcomunidade members have received individual land certificates for well-mappedland parcels, and legal changes now permit ejido members to lease or sharecroptheir parcels.88

But the results have not all been positive. Most agricultural land in the formerSoviet Union is still farmed in massive, inefficient collective farms, even thoughthe land is privately owned. The owners do not enjoy ownership rights in any trulymeaningful way. In this sense the land reforms in the former Soviet Union areonly partially complete.89 And in Mexico, field research in Oaxaca State suggeststhat little ejido land has been completely privatized.90

84 Namibia has interesting experience with the concept of willing seller. The Agricultural(Commercial) Land Act of 1995 requires that landowners who wish to sell their land firstoffer it for sale to the government, which would redistribute the land to the needy. How-ever, many willing sellers have wanted to sell to other private parties, not to the govern-ment, and have managed to do so by characterizing the transfer as a donation to a closelyheld corporation. As a result, over 15 percent of Namibia’s commercial agricultural landis under corporate control, which could lead to access problems for poor people in thefuture. See Pohamba, supra n. 44, at 4–5.85 See Brown, supra n. 54, at 15–16.86 See id. at 20–21.87 See Rolfes, supra n. 34, at 21, 23, and 25.88 Agrarian Law of Mexico, supra n. 53, at art. 79; and see Brown, supra n. 54, at 23.89 See Rolfes, supra n. 34, at 26–29.90 See Brown, supra n. 54, at 21–22.

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What legal measures can be used to improve the ability of the privatization/decollectivization model to deliver benefits to poor people? First, the Mexicanexperience suggests that tax policy is acting as a disincentive to full privatizationof ejido land.91 Tax and other obstacles should therefore be identified andremoved. Second, the post-Soviet experience shows that the model must deliverland rights that are closer to individual ownership than to collective ownership.Most “private” rural land in the former Soviet Union, especially Russia, is heldin a unique common ownership form known as the land share. A land share represents rights to a certain amount of land on a former collective farm but doesnot relate to a specific physical land parcel. For example, on a typical collectivefarm a land share owner will have rights to a ten-hectare share somewhere on thefarm’s 5,000-hectare farmland base. While these shares are legally tradable, andin most cases have been leased, the sense of ownership and the accompanyinginterest in doing something with the land right is by and large nonexistent. Whilethe land may be considered private in a technical sense, by and large the attrib-utes of ownership are not present.

Replacing land shares with rights to specific land parcels is probably the bestlegal measure that can be taken to create firmer ownership rights and hopefullythe breakup of collective farms as time goes on. Moldova and Ukraine convertedmost of their land shares to individual land parcels. Another option is to convertland shares from their current incarnation as common rights in an entire collec-tive farm to common rights in single defined fields with a size of, say, not morethan fifty hectares.

4.4 Bringing Customary and Informal Practices into the Legal System

The previous discussion of the framework for a land market law presupposes toa significant degree that it will be formalized: The law will be adopted by legisla-tures or executive authorities and implemented in large part with the participationof official government bodies. The historical and legal tradition of the countriesof Eastern Europe and much of the former Soviet Union has enabled this para-digm to be applied there over the past fifteen years. However, in many other partsof the world, customary institutions or informal practices are important vehiclesfor making decisions regarding land use and land transfer. Virtually all the landarea in Africa is administered by customary institutions, for example.92 InIndonesia, much of the rural land is subject to communal rights held by

91 See id. at 22.92 World Bank & Deininger, supra n. 1, at 62.

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customary (adat) communities; these communal rights are characterized in manydifferent ways across the Indonesian archipelago.93

Eventually, though, land rights will come under the umbrella of formal law inplaces where customary or informal practices currently predominate. Thoughthis may take decades, it is inevitable. Thus, the question is how to make the tran-sition to formal law in a manner that causes minimum disruption, respects rightscreated by customary or informal practices, preserves practices that work well,protects poor people, and delivers a formal legal regime that people will acceptas legitimate and useful. The following points should be considered in attempt-ing to make the transition:

• Customary practices work well in many places and for many purposes, oneof which is to provide land access to the poor. Such practices have evolvedover time to meet the particular needs of people in particular areas. Wherecustomary practices are effective, they should be recognized by the formallaw, as has been done in Malawi, Mozambique, Tanzania, and many otherAfrican countries.94

• While customary practices often meet particular needs, it is also true that incertain cases they do not serve the people well in general.95 They may predominantly serve the interests of local power brokers, for example.Therefore, customary practices must be carefully examined to determinethe benefits they provide before they are recognized by the formal law.

• Formal law has limited ability to change customary and informal practicesby fiat. Premature changes will result in a disconnect between what the for-mal law is and what customary practice says about land rights. For exam-ple, in the Central Asian country of the Kyrgyz Republic the custom for eth-nic Kyrgyz people, still practiced, is for property to be inherited by theyoungest son, yet tradition is at odds with the country’s formal inheritancelaw.96 Thus, ideas described in the previous section that are not consistentwith customary and informal practices generally should not be forced uponthe population, even if they would seem to improve land rights. Rather,a transition scheme should be constructed that enables the population to

93 Rachel Haverfield, Hak Ulayat and the State: Land Reform in Indonesia in Indonesia:Law and Society 42, 45–46 (Timothy Lindsey, ed., Federation Press 1999).94 World Bank & Deininger, supra n. 1, at 63.95 See generally Searching for Land Tenure Security in Africa (John W. Bruce & Shem E.Migot-Adholla, eds., World Bank 1994).96 See Rolfes, supra n. 34, at 43.

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accept new approaches in the formal law when they are ready, retaining customary or informal practices until this occurs.

• Prematurely imposing formal legal changes to customary or informal practices can also cause positive harm, including the weakening or loss ofexisting rights. For example, the 2000 Côte d’Ivoire Land Law ignored cus-tomary traditions used for demarcation of land, decreeing instead “that allcustomary rights not transformed into full title within 10 years would revertback to the state.”101 The state’s ability to actually implement this provisionis limited102 and implementation could result in many people losing longstanding customary rights to land. Another example is in Uganda (seeBox 4–3), where premature imposition of formal registration may be sti-fling land markets.

97 See Mwebaza & Gaynor, supra n. 32, at v.98 See id.99 See id.100 See id. at vii.101 World Bank & Deininger, supra n. 1, at 64.102 See id.

Box 4–3. Land Transfers by Custom in Uganda

In Uganda the land in most land transactions is not formally titled. For thesetransactions the buyer and seller typically enter into an agreement that iswitnessed by local council officials or clan elders. Neither the agreement northe transaction itself is recorded or registered in any way.97

Transaction participants were generally “satisfied with the way in whichthe market is functioning, and did not perceive the costs as being prohibi-tively high or the procedures as being too complex.”98 However, with “regardto transactions on titled land, there was a general perception that the costswere too high and the procedures too complicated.”99 Trying to impose for-mal registration procedures on customary transactions could therefore havethe “unintended effect of stifling rather than stimulating land markets.”100

Source: R. Mwebaza & R. Gaynor, Land Sector Analysis: Land Market, Land Consolida-tion, and Land Readjustment Component (unpublished report, Govt. Uganda 2002) (copy on file with RDI).

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4.5 Conclusion

The ideas and recommendations discussed in this chapter relate to the legalframework for land markets that improves access of the poor to land. They fallinto three major areas:

1. Establishing and protecting secure tenure in land. Proper definition of prop-erty rights, certain aspects of the rule of law, protection of private land frominappropriate seizure by the State through its takings power, and effectiveconflict resolution mechanisms are examples of tenure security–enhancingmeasures.

2. Making the market a more efficient place to acquire land rights and todecrease distortions that “game” the system to the benefit of powerful inter-ests or make it harder for the poor to meaningfully participate in the mar-ket. Clear and concrete land purchase and lease contract rules and reducingtransaction costs, are examples of increased efficiency.

3. Pursuing legal strategies to give the poor more immediate access to landthrough the market in ways that do not distort market decision-making, trig-ger perverse economic results, or incite landowners to take self-protectivecountermeasures that could result in net harm to the poor. Examples ofsuch strategies are providing legal aid and information and restricting themarketability of land in certain contexts.

Adopting and implementing a good legal framework will not by itself lead toimprovements for the poor in the absence of economic and social reforms. But acountry that can successfully develop and adopt a legal framework that drawsfrom the ideas presented here will have made an important step forward toward astrong market system through which over time the poor can increasingly accessland and thus improve their economic lives.

C H A P T E R 5

Can Land Titling and Registration Reduce Poverty?

David Bledsoe*

5.1 Introduction

Land titling and registration are tools used in developing and transitional coun-tries for pursuing at least two distinct benefits: spurring economic developmentand alleviating poverty.1

The pursuit of these benefits rests upon the primary condition that titling andregistration give holders of land formal rights and increase their tenure security.It is widely assumed that rights and security create benefits in three primaryways:

1. Increased tenure security reduces the likelihood and fear of losing the valueof investments made in the land, which means that overall investment in theland is stimulated. Such investments increase production yields, economicreturns, and household incomes. The value of the land asset increasesaccordingly.

143

* David Bledsoe is a Senior Attorney at the Rural Development Institute (RDI) in Seattle,Washington. Information about the Institute can be found at http://www.rdiland.org. Theviews expressed in this chapter are the views of the author and do not necessarily represent the views of RDI.1 Australian Agency for International Development (AusAID), Improving Access to Landand Enhancing the Security of Land Rights: A Review of Land Titling and Land Administration Projects, Quality Assurance Series No. 20, xiii, 11–12 (AusAID 2000);L. Strachan, Assets-Based Development: The Role for Pro-Poor Land Tenure Reform10–11 (Discussion Paper, Canadian International Development Agency 2001); PeruUrban Property Rights Project, 1998 (P039086), Project Appraisal Document, at 5 and 27[hereafter, Peru Urban Property Rights]; Cambodia Land Management and AdministrationProject, 2002 (P070875), Project Appraisal Document, at 2, 5, 10, 14, and 27 [hereafter,Cambodia Land Management]; World Bank, World Development Report 2002: Building Institutions for Markets 31–38 (World Bank 2002) [hereafter, World Development Report2002]; Laos Second Land Titling Project, 2003 (P075006), Project Appraisal Report, at 2and 36 [hereafter, Laos Appraisal Report]; Laos Second Land Titling Project, 2003(P075006), Project Appraisal Document, at 16 [hereafter, Laos Appraisal Document];A. Galal & O. Razzaz, Reforming Land and Real Estate Markets, World Bank PolicyResearch Working Paper, No. 2616, 5–9 (World Bank 2001).

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2. Secure formal land rights can provide a real and secure source of collateral,which increases the availability of credit to obtain funds for investment inor even purchase of land.

3. Because secure rights also make the land market more efficient and conse-quently function better as the means for moving land resources into thehands of those who can put them to the most productive and efficient use.Again, increases in overall economic activity and return are anticipated.2

Although economic growth does not necessarily alleviate poverty, there is tosome extent a necessary link. Poverty alleviation is certainly linked to economicdevelopment for the poor. While alleviation of poverty is of primary interest inthis chapter, at a minimum an understanding of how titling and registration arethought to spur economic development must inform that discussion. For the poorto benefit from titling and registration, they must be reached and helped by theeconomic benefits created by titling and registration.

To provide necessary context, the next section describes a few of the morenotable titling and registration programs around the world. The third sectiondescribes how titling and registration are thought to spur economic developmentand then provides evidence from the literature as to whether or not this is hap-pening. The fourth section relates titling and registration to the alleviation ofpoverty. Then, given the reality that land titling and registration is likely to con-tinue to be a widely pursued development activity, the final section offers somerecommendations and suggestions.

5.2 Titling and Registration Programs

To provide context for the examples used in other sections, this section summa-rizes a few past and current titling and registration programs around the world.No attempt has been made to create an exhaustive catalog; instead, a few of themore notable and oft-cited programs are identified and discussed.

2 AusAID, supra n. 1, at 7–8; G. Feder & A. Nishio, The Benefits of Land Registration andTitling: Economic and Social Perspectives, 15(1) Land Use Policy 25, 26–28 (1999); S.Pagiola, Economic Analysis of Rural Land Administration Projects, Land Policy &Admin. Thematic Team, 3–9 (World Bank 1999); T. Hanstad, Designing Land Registra-tion Systems for Developing Countries, 13 Am. U. Intl. L. Rev. 647, 657–64 (1998);G. Feder & D. Feeny, Land Tenure and Property Rights: Theory and Implications forDevelopment Policy, 5(1) World Bank Econ. Rev. 135, 139–143 (1991); H. Binswanger,K. Deininger & G. Feder, Power, Distortion, Revolt, and Reform in Agricultural Land Relations, in Handbook of Development Economics, vol. III, 2719–21 (J. Behrman &T. N. Srinivasan, eds., Elsevier Science 1995).

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5.2.1 East Asia

The land systems in East Asian developing economies are varied but can begrouped into several categories by a few common characteristics. China and Vietnam, for example, can be grouped together because of the heavy stateinvolvement in land allocation and tenure formalization, and the Philippines andIndonesia because of their customary tenure patterns, historical periods of occu-pations, and relatively inegalitarian distribution patterns. Lao People’s Demo-cratic Republic (Lao PDR) and Cambodia can be paired because of their nascentrights regimes, lack of tenure security, and land use patterns. Thailand standsalone by virtue of its longer history of private legal property rights.3

In Thailand, beginning with phase I in 1985 and then spanning two additionalphases and eighteen years, a mass titling effort was made to clarify existing butundocumented (and sometimes confused) land rights and to transform old titlesinto new ones. By the closeout of phase III in 2002, about 11.5 million titles hadbeen issued.4 An oft-cited 1988 study of portions of the first phase, using datacollected in 1984 and 1985, looks at credit and borrowing patterns of Thai farmers in selected villages within four of Thailand’s seventy-six provinces.5

In Cambodia, a seven-year World Bank loan–funded land management andadministration project is the first phase of the government’s longer-term LandAdministration, Management and Distribution Program. Now in its third year,the current phase consists primarily of a ten-province titling pilot that will issueand register about 1 million title; in conjunction with this systematic titling, asporadic program will issue first-time titles on demand in a number of otherprovinces. The pilot also has institutional development, public awareness and par-ticipation, dispute resolution, land management, and land policy and regulatorycomponents.6

In the Lao PDR, where there are an estimated 850,000 rural and urban landholdings, phase I of a titling and registration effort, which began in 1997, focusedprimarily on the regulatory framework and property valuation. It is projectedthat the program, now in its second phase, will have issued 600,000 titles by its2009 close. Additional phase II components are land policy and regulatory

3 M. Childress, East Asia and Pacific Region: Regional Study on Land Administration,Securitization, and Markets 1–5 (World Bank 2003).4 The Thailand Fourth Land Titling Project, 1999 (P069035), Project Information Docu-ment 1–3 [hereafter, Thailand Information Document]; Thailand Land Titling (03) Project, 1994 (P004803), Project Implementation Completion Report 2–8 [hereafter,Thailand Completion Report].5 See G. Feder, T. Onchan, Y. Chalamwong & C. Hongladarom, Land Policies and FarmProductivity in Thailand (Johns Hopkins U. Press 1988).6 See Cambodia Land Management, supra n. 1, at 32–37.

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development, land administration capacity building, and training and public edu-cation and participation.7

5.2.2 Former Soviet Union

Since the breakup of the Soviet Union, there has been a big push to move landformally owned by the State into private hands. This individualization of stateland has required massive demarcation and titling efforts. In many cases, settingup a registration system followed or is following these titling efforts. The titlingand registration systems and accompanying legislation had to be developed fromscratch because under the Soviet regime there were no individual rights to land.8

The Kyrgyz Republic’s current World Bank loan–funded land and real estateregistration project follows a land component within an earlier agriculture sup-port services project that had issued land certificates to most Kyrgyz land rightsholders. The current project, which was closed out in 2005, created 50 localland registration offices and also had systematic title registration, creation of reg-istration zones and index maps, and public awareness campaigns and trainingcomponents.9

In Moldova during a six-year USAID-funded national land titling and regis-tration program about 2.4 million land titles were prepared for about 783,000individual owners. Many of the titles were registered in local land registries.Together, they represent privatization of 901 collective farms that participated inthe program.10 During a five-year World Bank loan-funded cadastre project thatran from 1999 through 2003, an estimated 330,000 urban properties and 200,000rural properties were titled and registered. The project also had an institutionalcapacity-building component.11

In Armenia, both USAID bilateral funding and a World Bank loan have goneto support land titling and registration in the past six years. The USAID projectwas directed to improvements to a nationwide title registration system, recom-mendations for real estate broker and appraiser legislation, proposed changes tolaws affecting real estate and rights to real estate, assistance to new and existing

7 See Laos Appraisal Report, supra n. 1, at 2–3, 7–9, and 43–49.8 See generally, R. Giovarelli & D. Bledsoe, Land Reform in Eastern Europe: Western CIS,Transcaucusus, Balkans, and EU Accession Countries, Sustainable Dev. Dept., SDdimensions (FAO 2004/2001).9 The Kyrgyz Republic Land and Real Estate Registration Project, 2000 (P049719), Proj-ect Appraisal Document, at 26–32 [hereafter, Kyrgyz Republic Appraisal Document].10 S. Dobrilovic & R. Mitchell, Project to Develop Land and Real Estate Markets inMoldova: End of Contract Report 3–6 and 9–15 (USAID/Booz Allen & Hamilton 2000).11 The Moldova First Cadastre Project, 1998 (P035771), Staff Appraisal Report, at 9–11[hereafter, Moldova Appraisal Report].

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private real estate entities, and a public information campaign.12 The project wasfunded by World Bank loans. It ended in 2004, after helping to create 47 land reg-istration centers, to survey 2.5 million privately owned parcels, and to set upabout 1.25 million property records. Most of these records were entered into thenew registry by 2005.13

In Ukraine, a modest USAID land demarcation and titling program has beenissuing titles since 2001. Through mid-2004, about 750,000 State Acts (titles) hadbeen issued for agricultural land and about 12,000 for nonagricultural parcels,though no title registry yet exists. This project also had significant legal and regu-latory, public education, and legal aid components.14 A World Bank loan–fundedland titling and cadastre development project that began in mid-2003 has the goalof issuing up to 4 million State Acts; it also has legal reform, public awareness,training, surveying, title registry, and farm restructuring components.15

Tajikistan’s six-year farm privatization support program, funded by WorldBank loans, sought to formalize long-term inheritable land use rights to individ-uals on ten collective farms. Land was transferred to 5,782 farm families by wayof land use certificates that defined boundaries and that were registered in a cen-tral database. Some other nonproject farms have since used the project’s methodsto extend formalized use rights to other farm households. A second World Bankloan–funded farm privatization project is now under consideration.16

5.2.3 Latin America

Latin American land reform and titling and registration efforts have a longer his-tory; they reflect a milieu of unequal land distribution, large agricultural laborerpopulations, insecure smallholder property rights, and interjections of conflictingindigenous rights. Abundant in land but with large populations of landless poor,

12 United States Agency for International Development, Armenia: Real Estate MarketReform and Title Registration 1–2 (USAID 2001), available at: http://www.usaid.gov/am/activitypages/ronco.html. 13 The Armenia Title Registration Project, 1998 (P057560), Project Implementation Completion Report, at 4–10 [hereafter, Armenia Completion Report].14 S. Dobrilovic, Ukraine Land Titling Initiative: Monthly Report for April 2004 1–11(Chemonics Intl. 2004). 15 Ukraine Rural Land Titling and Cadastre Development Project, 2003 (P035777), Project Appraisal Document, at 41–49 [hereafter, Ukraine Appraisal Document].16 Tajikistan Farm Privatization Support Project, 1999 (P049718), Project Appraisal Document, at 31–41 [hereafter, Tajikistan Appraisal Document]; Land Registration andCadastre System for Sustainable Agriculture Project (LRCSP), 2005 (P089566), ProjectInformation Document, at 1–5 [hereafter Tajikistan Information Document].

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most Latin American countries have seen both urban and agricultural land programs.17

In Honduras there have been several land administration and titling and regis-tration projects over the years. From 1997 through 2003, a World Bankloan–funded rural land management project registered 72,000 urban and 77,000rural properties as part of its land administration component, which was supportedby natural resources management, uplands producer, and biodiversity conserva-tion components.18 A World Bank loan–funded US$17 million pilot project, orig-inally slated for completion in 2004 but now extended to late 2006, is designed tohelp 1,600 farm households purchase land to establish agricultural enterprises.Funds are being made available to private financial institutions to make loans forland purchases. The project also covers legal services, project administration,other technical assistance, and subproject grants to new rights holders.19 A newerWorld Bank loan-funded project begun in 2004 is expected to run for twelve yearsin three four-year phases. In the first phase (2004–2008), it is planned that 745,000land parcels will be surveyed and registered. This phase will also have policy andregulatory and institutional capacity-building components.20

A long-running land use rationalization project in Paraguay, funded by WorldBank loans with bilateral assistance from USAID and Japan, aimed to improvethe government’s land and resources information base and management capabil-ities. The project included creation of a rural cadastre in several regions, devel-opment of geographic information system (GIS) capacities, and evaluation of theexisting land titling system.21 This work has been complicated by the fact thatmany existing property rights were of less than fee simple scope because the landdistribution and formalization effort that began in 1963 restricted the alienabilityof much of the land. The project also granted some land rights to holders whommany consider inappropriate. An Inter-American Development Bank loan hasapproved funding for a more extensive cadastre and property registry program.

17 R. Lopez & A. Valdez, Fighting Rural Poverty in Latin America: New Evidence and Policy in Rural Poverty in Latin America 19–24 (R. Lopez & A. Valdez, eds., MacmillanPress, Ltd. 2000); and C. D. Deere & M. León, Empowering Women: Land and PropertyRights in Latin America 292 (U. Pitt. Press 2001). 18 JSDF–Developing Central American Small Farmers Links to Specialty Coffee Market(Rural Land Management Project), 1997 (P007398). Project Implementation CompletionReport, at 3–9 [hereafter, Honduras Land Administration].19 Honduras Access to Land Pilot Project, 2000 (P073035), Project Appraisal Document,at 24–26 [hereafter, Honduras Access to Land]. 20 Honduras Land Administration Project, 2004 (P055991), Project Appraisal Document,at 32–39 [hereafter, Honduras Land Administration Appraisal].21 Paraguay Land Use Rationalization Project, 1992 (P007911), Project Description,http://web.worldbank.org/external/projects/main?pagePK=104231&piPK=73230&theSitePK=40941&menuPK=228424&Projectid=P007911 [hereafter, Paraguay ProjectDescription].

Can Land Titling and Registration Reduce Poverty? 149

The work will increase the legal security of ownership titles and will modernize theregistration and cadastral systems. This project will continue through 2006.22

In Nicaragua, World Bank loans have funded several land-related programsover the past eleven years. The Agricultural Technology and Land ManagementProject, which ran from 1993 to 2000, included a component to improveNicaragua’s national land cadastre, titling, and registration systems; the relativelylimited land-titling task issued 50,000 titles. The current Land AdministrationProject, running from 2003 into 2007, aims to reform the land-related policy andlegal framework, facilitate institutional decentralization and strengthening,strengthen property rights administration, issue titles and facilitate resolution ofattendant disputes, and demarcate protected areas and indigenous lands. It ishoped that over 57,000 titles will be issued within three demonstration depart-ments and several other locales.23

In Peru, an urban property rights titling and registration project, which wasfunded by World Bank loans and closed in 2004, was targeted at predominantlypoor settlements in larger urban areas. One component supported legal, regula-tory, and institutional reforms to sustain and deepen existing market reforms;another sought to strengthen and expand the two national urban property rightsorganizations. The third component, which issued about 800,000 titles, convertedurban property in informal settlements to formal and secure property rights.

5.2.4 Africa

At the risk of oversimplification, African titling and registration have raised aseries of paradoxes that make them difficult to negotiate. The list is long: indi-vidualization and common use; informal tenure regimes and formalization oftenure; commercial and community land uses; urban and rural settlements; tradi-tional cattle grazers and traditional small-plot croppers; customary dispute resolution and violent outbreaks over resources.24 In some cases, titling and

22 Inter-American Development Bank, Paraguay Cadastre and Property Registry Program Loan Proposal 1–13 (IADB 2002). 23 Nicaragua Land Administration Project, 2002 (P056018), Project Appraisal Document,at 3, 5, 14–15, and 57–69 [hereafter, Nicaragua Appraisal Document]. 24 J. W. Bruce, Country Profiles of Land Tenure: Africa 1996, Land Tenure CenterResearch Paper No. 130 (Land Tenure Center, U. Wisconsin–Madison 1998); M.Rwabahungu, Tenurial Reforms in West and Central Africa: Legislation, Conflicts, andSocial Movements, in Whose Land? Civil Society Perspectives on Land Reform and RuralPoverty Reduction (K. Ghimire, ed., Int’l Fund Ag. Dev. 2001); E. Koch, J. M. Massyn &A. van Niekerk, The Fate of Land Reform in Southern Africa: The Role of the State, theMarket, and Civil Society, in Whose Land? Civil Society Perspectives on Land Reformand Rural Poverty Reduction (K. Ghimire, ed., Intl. Fund Ag. Dev. 2001); Searching forLand Tenure Security in Africa (J. W. Bruce & S. E. Migot-Adholla, eds., Kendall/Hunt1994); and F. Muhereza & D. Bledsoe, Final Report—Land Sector Analysis: CommonProperty Resources Component (Gov. Uganda 2002).

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registration of individualized rural parcels have been condemned as inconsistentwith and destructive of an otherwise functional common property tradition.25

Titling and registration of community-held, commonly used land are seen as anattractive option by others.26 Some call for formalization, titling, and registrationof millions of residential parcels in informally settled urban areas.27 Others hopeto plan their way out of urban inundations of squatters by creating master plansthat simply call for lower development densities.28

Current and past titling and registration projects are varied. Kenya probablystands as the most extensive and “Westernized” example of land plot individual-ization, titling, and registration in Africa. Beginning in the 1950s, large portionsof several of Kenya’s districts were individualized and formalized.29 In Uganda,since the passage of the 1998 Land Act, the government has been consideringland demarcation and titling pilots as a means of stimulating land markets,although it is anticipated that local demand will drive any subsequent titling.30

Rwanda has recently conducted a land assessment, the conclusions of which rec-ommend a two-tier land titling and registration system: an informal system at thelocal level and a more formalized system at the center that would title commer-cial concessions.31 In Angola, pilot projects directed by the Food and AgricultureOrganization are now demarcating and semiformally registering communitycommon land holdings.32

25 J. W. Bruce, Land Tenure Issues in Project Design and Strategies for Agricultural Devel-opment in Sub-Saharan Africa 81–84 (Land Tenure Center, U. Wisconsin–Madison 1986);J. Quan, Land Tenure, Economic Growth and Poverty in Sub-Saharan Africa in EvolvingLand Rights, Policy and Tenure in Africa 35–38 (C. Toulmin & J. Quan, eds., IIED & Natural Res. Inst. 2000); J. Platteau, Does Africa Need Land Reform? in Evolving LandRights, Policy and Tenure in Africa 66–67 (C. Toulmin & J. Quan, eds., IIED & NaturalRes. Inst. 2000). 26 United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA),Angola: Land Reform Needed, IRIN News 1 (Apr. 26, 2002); Republic of Uganda, LandAct §5 (1998). 27 Development Workshop, Terra Firme: Oportunidades e Constrangimentos para umaGestão Apropriada da Terra Urbana em Angola (Dev. Wkshp. 2003). 28 Republic of Angola, Territory and Planning Act (2004). 29 See Bruce, supra n. 24, at 175–76. 30 Republic of Uganda, Land Sector Strategic Plan: 2001–2011 36–38 (Rep. Uganda2002). 31 Republic of Rwanda, Land Assessment Report 36 (Natural Res. Inst. (NRI), Universityof Greenwich 2004). 32 D. Bledsoe & C. Pinto, Republic of Angola: Land Law and Policy Assessment 13(USAID 2002).

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5.3 Titling and Registration and Economic Growth

5.3.1 Introduction

As noted, the economic development benefits sought through titling and regis-tration are believed to come from formal rights and increased tenure security.Many assume that such rights and security prompt increased investment and cor-responding production gains, and that there will be as a consequence increases incredit opportunities and borrowing. Finally, it is thought that formalized rightsand increased security lead to more active and efficient land markets.33 Theremainder of this section describes these potential economic benefits in moredetail and then gives evidence from the literature about achieving them.

Hard information about the costs and success or failure of titling and regis-tration projects is surprisingly limited, repetitive, and sometimes inconclusive.34

Some of the early studies are considered analytically unsound or statisticallyunsupported.35 Certainly, the land administration portfolios of the World Bankand bilateral donors are relatively young, with most projects having started onlyin the 1990s. For most, it is too soon to assess long-term impacts. Most titlingand registration projects are virtually without performance data to support find-ings of a causal, attributable relationship between tenure security and economicbenefits.

Some positive evidence does exist. Relying on real but limited data, some saythat titling and registration can in fact increase credit opportunities and boost capital-to-land ratios, improvements, land values, and outputs and inputs per unitof land.36 Others note that the data show that benefits have in many cases failedto appear.37

33 See AusAID, supra n. 1, at 7–8; Feder & Nishio, supra n. 2, at 26–28; Pagiola, supran. 2, at 3–9; Hanstad, supra n. 2, at 657–64; Feder & Feeney, supra n. 2, at 139–43; andBinswanger et al., supra n. 2, at 2719–21. 34 See Lopez & Valdes, supra n. 17, at 23; Platteau, supra n. 24, at 56–69; H. Lemel, Land Titling: Conceptual, Empirical, and Policy Issues, in Land Use Policy 285–89 (Butterworth & Co. 1988); AusAID, supra n. 1, at 26 and 28–29; and A. Brasselle, F. Gaspart & J. Platteau, Land Tenure Security and Investment Incentives: Puzzling Evidence from Burkina Faso, 67 J. Dev. Econs. 373, 374–375 (2002).35 See Feder et al., supra n. 5, at 7–9. 36 See id. 37 F. Finan, E. Sadoulet & A. de Janvry, Measuring the Poverty Reduction Potential ofLand in Mexico, CUDARE Working Papers No. 983, 2 (U. Cal, Berk. 2002); see alsoLopez & Valdes, supra n. 17, at 23–24; D. W. Palmer, Incentive-based Maintenance ofLand Registration Systems 2 (dissertation for Ph.D in philosophy, University of Florida1996).

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5.3.2 Security of Tenure and Increased Investment and Productivity

A landholder has secure tenure if there is little or no likelihood of losing physi-cal possession of the land in the future. With titling and registration increasingtenure security, because the likelihood and fear of losing the value of investmentsin land is decreased, overall investment in land is thought to be stimulated. Foragricultural land, the investment might take the form of more and better farminputs and such physical improvements as irrigation, terracing, drainage, treeplanting, demarcation of boundaries, and produce storage. For urban landholders,investments might fund housing and industry or other commercial activities.The investments increase production yields, economic returns, and householdincomes. The value of the land asset increases accordingly.38

There is little direct evidence, however, of increased investment and produc-tion in countries that have had titling and registration projects. The Thai titlingand registration effort is one of the few to include meaningful data collection andan econometric multivariate analysis. That analysis generally indicated that capital-to-land ratios, improvements, land values, and outputs and inputs per unitof land were higher for the titled than the untitled land.39 Another study, usingdata from land registration in Thailand (1960 through 1996), projected the effectof Thai land registration on broader financial and economic growth patterns. Thestudy concluded that registration has had a significant effect on longer-term eco-nomic growth, which occurred after an initial negative impact that lasted twoyears and after an extended period of recovery therefrom. Given that the longer-term positive impact reflects the theoretical expectations, it was suggested thatthe effects of early speculation and related land price increases and initial cautionon the part of financial agents caused the initial negative impact.40

In the countries of the former Soviet Union, neither economic nor productioneffects directly linked or attributable to land titling or registration projects haveyet been confirmed, partly because these programs are relatively young but alsobecause many other economic factors are at play, including disrupted input andoutput markets. For example, in the Kyrgyz Republic, where land share certifi-cates have been issued and registered for substantially all the collective farms

38 See AusAID, supra n. 1, at 7–8; Feder & Nishio, supra n. 2, at 26–28; Pagiola, supran. 2, at 3–9; Hanstad, supra n. 2, at 657–664; Feder & Feeny, supra n. 2, at 139–143; andBinswanger et al., supra n. 2. 39 See Feder et al., supra n. 5, at 101–14. 40 F. Byamugisha, How Land Registration Affects Financial Development and EconomicGrowth in Thailand, Policy Research Working Paper Series No. 2241, 19 and 22 (WorldBank 1999).

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reorganized by 2000, total agricultural production, crop production, and foodproduction increased from 1994 through 2000 but dropped off in 2001.41 No dataabout investment are available. Remnants of the collective farm legacy remain,however, and may restrain the titling and registration investment and productionbenefits that might otherwise be expected. Former collective farm bosses in someKyrgyz oblasts have prevented or obstructed farmers and farm families frombreaking off from collective farms to farm independently. It is only within the lastseveral years that legal education and advocacy support have been provided sothat these landowners know how to overcome this kind of obstruction. Continu-ing to increase legal literacy and legal aid would probably help in realizing titlingand registration benefits.

In Moldova, total agricultural production, crop production, and food produc-tion figures have moved up and down, but the 2001 figures show a decline from1994, 1996, and 2000 totals.42 Here too there has been obstructionist behavior byformer farm bosses that may limit the creation of private farms and the attendantinvestment and production increases. The titling programs have, however, hadlegal education and advocacy components. Efforts to achieve a certain level oflegal literacy and to provide related advocacy support may over time improve thevalue and yields of titling and registration.

In Armenia, total agricultural and crop production has dropped steadily since1998.43 No investment data are available. In Ukraine, figures for total agriculturalproduction, crop production, and food production have shown increases over thedata for 1999, 2000, and 2001.44 Some new title holders have reported that for-mer farm bosses have made lease agreements with the title holders but have failedto pay lease payments when due, so here, too, benefits may be constrained byunfair behavior. The legal education and advocacy efforts that are getting underway in Ukraine will probably help.

Few of the Latin American programs have been systematically evaluated toconfirm linkages between tenure security and economic development (invest-ment, credit, land markets). Some recent studies of titling in Honduras andParaguay did find beneficial effects of tenure security on investment and of landtitles on increased productivity—but the studies also indicated that most of thebenefits went to a small minority of farmers who were not the poorest or those

41 R. Giovarelli, Land and Agrarian Reform in Kyrgyz Republic Research Results 3(unpublished memorandum on file with RDI 2002); see also Food and AgriculturalOrganization of the United Nations, Agricultural Production Indices, http://apps.fao.org/page/collections?subset=agriculture (FAOSTAT Database, Nov. 7, 2002). 42 See FAO, id. 43 See id.44 See id.

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with the least land.45 Another recent study of tenure insecurity and investmentand productivity in Nicaragua showed some positive connection between tenureinsecurity and lower production levels, although there was no indication that theinsecurity reduced investment.46

There is little or no evidence that land titling and registration of individualparcels have spurred investment or worked to increase agricultural production inAfrica. Evidence from sporadic titling in Kenya and Burkina Faso shows thatinvestment has not increased there.47 In Uganda some forms of tenure insecuritymay actually have spurred investment: Parcel occupiers may increase investmentin perennial crops and other improvements so as to make eviction more costlybecause of higher mandated compensation amounts where compensationrequirements are enforced.48 One study of thirty-six Ugandan villages concludedthat tree planting increased the security of rights to inherited land.49 Improve-ments made or added to the land can increase tenure security by denoting permanency and owner-like status. The notion that investment might increasesecurity must be accounted for in any analysis of African titling and registration.Not accounting for it is likely to yield results showing that increased securityresults in investment.50

In situations where titling requires that rights holders bear real costs, it mayalso be that the parcels that would benefit most from investment are those to beregistered, at least for sporadic titling. These situations are ones of correlationrather than causality.51

Other findings tend to establish that some customary tenure systems in Africa,even those that provide for less than full transfer rights, provide sufficient rightsand security to prompt investments in the land that work to increase tenure

45 M. R. Carter & E. Zegarra, Land Markets and the Persistence of Rural Poverty: Post-Liberalization Policy Options, in Lopez & Valdes, eds., supra n. 17, at 81–82; seealso R. Lopez & T. S. Thomas, Rural Poverty in Paraguay: The Determinants of FarmHousehold Income, in Lopez & Valdes eds., supra n. 17, at 252–57; and Lopez & Valdes,supra n. 17, at 23–24. 46 J. Foltz, B. Larson & R. Lopez, Land Tenure, Investment, and Agricultural Productionin Nicaragua, Dev. Disc. Papers: Cent. Am. Project Series, 17–18 (Harv. Inst. Intl. Dev.2000). 47 See Quan, supra n. 25, at 35–36; Brasselle, et al., supra n. 34, at 395–96. 48 J. Mackinnon & R. Reinikka, Lessons from Uganda on Strategies to Fight Poverty 38(Centre Study Afr. Econs. & World Bank 2000). 49 J. Baland, F. Gaspart, F. Place & J. Platteau, Poverty, Tenure Security, and Access to Landin Central Uganda: The Role of Market and Non-Market Processes 27–28 and 30 (WorldBank 1999). 50 See Braselle et al., supra n. 47, at 375, 391.51 See id. at 374.

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security. Land tenure security under customary systems may therefore bestronger than at first appears; what seem at first inspection to be precarious rightsmay in fact be stronger than suspected. Methods of measuring land tenure secu-rity may be at fault because they do not always distinguish between levels of secu-rity as they actually exist.52 Perceptions of insecurity should be scrutinized toaffirm assumptions about the effect of insecurity prior to titling and registrationefforts in Africa.

Despite these African examples, it is probably useful to remember that landtitling and registration—particularly in Africa—is contextual. Most of the exam-ples given illustrate individualization and formalization of small agriculturalparcels. But what might not be useful in one situation might be useful in another.For example, because of the intense urban and peri-urban informal settlementsthat make up and surround so many African cities, titling and registration ofurban residential plots may be a sensible way to formalize investment, createassets for the urban poor, and prevent displacement and landlessness.

In summary, however: The direct evidence is lacking. It has not been exten-sively shown that titling and registration significantly increase investment or production.

5.3.3 Credit and Borrowing

The formal, secure land rights created by titling and registration are thought tobetter provide for a real and secure source of collateral. It is assumed that the col-lateral increases the availability and terms of credit to obtain funds for investmentin land. Some see the tenure security–credit nexus as more tenuous than the con-nection between security and increased investment. Moreover, the credit benefitis seen as being less likely to benefit rich and poor farmers equally. This imbal-ance reflects the fact that the relative burden of obtaining credit is greater for thepoor, and the risk of foreclosure (endangering the source of subsistence) is morelikely to limit their willingness to pledge land as collateral.53 In any case, there islittle direct evidence of increased credit opportunities and borrowing in countriesthat have had titling and registration projects.

One exception, again, is the oft-cited 1988 study of portions of the Thailandfirst- phase project, which used data collected in 1984 and 1985. This study looksat credit and borrowing patterns of Thai farmers in sixty-eight villages withinfour of Thailand’s seventy-six provinces.54 Specifically, the study looked at

52 See id., at 379–81.53 H. Lemel, Land Titling: Conceptual, Empirical, and Policy Issues, in Land Use Policy283–85 (Butterworth & Co. 1988). 54 See, Feder et al., supra n. 5.

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patterns of borrowing and nonborrowing by titled and untitled farmers from insti-tutional sources, noninstitutional sources, and both. The descriptive study foundinconsistent indications of whether titling might increase the incidence of bor-rowing. There was no significant difference between titled and untitled farmersamong those that borrowed from institutional sources only or from noninstitu-tional sources only. Nor was there a significant difference between titled and unti-tled farmers in nonborrowing. Only among borrowers from both institutional andnoninstitutional sources was there a difference: untitled farmers borrowed almosttwice as many times. In one province, however, there were no significant differ-ences between titled and untitled farmers in nonborrowing or in types of borrowing, but the incidence of titled farmers that borrowed only from noninsti-tutional sources was higher than that of untitled farmers.55

Looking at the distribution of loans by sources, the Thai descriptive studyfound no significant difference between the number of loans obtained by titledand untitled farmers from either institutional or noninstitutional sources, and, forloans obtained from institutional lenders, the mean interest rate obtained by titledand untitled farmers was virtually the same.56

There were, however, several findings based on the descriptive data that sup-ported the study hypothesis that credit benefits would accrue to titled farmers.First, titled farmers obtained more medium and long-term loans from institu-tional lenders than did untitled farmers. Second, titled farmers obtained lowerinterest rates from noninstitutional lenders (for both titled and untitled farmers,medium- and long-term loans from noninstitutional lenders were very rare).Third, the amount of loan funding per unit of land was higher in most cases whentitled land was used as collateral. Finally, the study authors concluded, even whenidentical kinds of security were provided, titled farmers received more creditfunding per unit of land than untitled farmers.57

Because credit and borrowing are affected by many factors related to title, theThai study also applied econometric multivariate (switching regression) analysisto the descriptive data.58 This analysis concluded that the security of ownershipinherent in having a formal title to land provided significant advantages in obtaining institutional credit.59

Another important conclusion drawn from the Thai study might have beenworth further study at the time, and perhaps even now. The data showed that

55 See id. at 49–57.56 See id. at 53. 57 See id. at 49–56. 58 See id. at 57–58.59 See id. at 67.

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group guarantees to make loan payments were important when individual unti-tled farmers obtained loans from institutional lenders.60 While this might help toexplain why credit access and types of credit were not significantly different fortitled and for untitled farmers, it might also have prompted inquiry into whetherefforts to increase group guarantees might have been more cost-effective for purposes of improving credit access than titling land.

An AusAID review of its participation in land titling projects, including theThai project, observed that the conclusions drawn from the mainly positive Thaistudies have been used to support titling and registration projects elsewhere, butthat this use is not necessarily valid because the conditions might be differentelsewhere. For example, inflation in Thai property values in the 1980s created ahigh demand for titles, which worked to meet a necessary precondition for suc-cess. The review concluded that the Thai results, like all results, have limitedapplicability.61 The World Bank’s performance audit of the second Thai titlingproject echoed this cautionary note when it concluded that the Thai projectimpacts can be significantly attributed to circumstances that may not apply inother countries.62 The lesson to be learned here is that, whatever the benefitssought from titling and registration, past program results from one country cannot be used alone to justify or presage the success of a proposed program inanother country. The prospects for any proposed program should be assessed inlight of conditions in the target country. The same accrual of benefits cannot beassumed if conditions differ.

There is little evidence that African titling and registration projects haveincreasedopportunities toobtaincredit.63 InKenya, somesmallholdersavoidapply-ing for loans secured by their land because they are afraid of foreclosure. In Uganda,somelandholdersarepresumed tobe fearfulofusingsecuredcredit for thesamerea-son.64 In Uganda most respondents to a survey in 2001 said they were unaware thata purchase money mortgage might conceivably finance a land purchase.65

For Latin America, there is virtually no evidence about the credit benefit,although a 1996 study of titling in Honduras showed some beneficial effects oftenure security on credit availability.66

60 See id. at 54.61 See AusAID, supra n. 1, at 28–29, 53, and 110. 62 World Bank, Thailand Land Reform Areas Project and Second Land Titling Project Performance Audit Report 25 (World Bank 1998).63 See Platteau, supra n. 25, at 59–61. 64 See Mackinnon & Reinikka, supra n. 48, at 38.65 R. Mwebaza & R. Gaynor, Final Report—Land Sector Analysis: Land Market, LandConsolidation, and Land Re-adjustment Component 19 (Gov. Uganda 2002).66 See Carter & Zegarra, supra n. 45, at 82.

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For the credit benefit provided by titling and registration elsewhere, the directsupport is a bit more evident. The Thai data, while in no way extensive or con-clusive, does show some sign of that benefit accruing. However, it remains to beseen whether other titling and registration projects have significantly increasedcredit and borrowing opportunities.

5.3.4 Land Markets

The secure rights that come with titling and registration are also thought to makethe land market more efficient so that they function better as the means for moving land resources to those who can put them to the most productive and effi-cient use. Again, with more efficient land use, increases in economic activity andproductivity generally are expected. As a rule, if uneconomically large holdingsare titled, the land market would tend to break them up into more efficient sizes.Conversely, if uneconomically small holdings are titled, the market would tend toincrease the size of parcels and concentrate ownership to some extent.67 As withthe investment, production, and credit benefits of titling and registration, thedirect evidence for a security–market efficiency–economic development linkageis sparse.

For countries in the former Soviet Union that have had land titling and registra-tion projects, there is little information on land markets or numbers of land trans-actions.68 Where information is available, it does not show sudden increases in landmarket activity. For example, in Armenia, where by December 2001 about half thetitles had been issued for the 1.3 million privately held parcels, land market activ-ity has been slow to increase; the reasons cited are low prices, relatively high registration and notary costs, and retention of land as a subsistence resource.69

Information from Africa is also limited, although evidence from Kenya sug-gests that titling has not prompted an increase in land market transactions or intransfers that display evidence of more efficient land use.70 Moreover, systematicindividualization and formalization are not always prerequisite to the establish-ment of African land markets or to land investments. A recent land market studyof both titled and untitled land in Uganda showed that markets in untitled landwere active and vibrant despite the absence of formal titles and registration. In the

67 H. Dekker, The Invisible Line: Land Reform, Land Tenure Security, and Land Registra-tion, Ashgate Intl. Land Mgmt. Series 39–41 (Ashgate Pub. Ltd. 2003).68 Z. Lerman, Comparative Institutional Evolution: Rural Land Reform in the ECARegion, World Development Report Background Paper 9–11 (World Bank 2001). 69 K. Chluba & E. Schmidt-Kallert, Strategy for Land Consolidation and Improved LandManagement in Armenia 14–15 (FAO 2001). 70 See Platteau, supra n. 25, at 56–58.

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provinces studied, occupants of customary land had clearly established theirrights over particular plots and were able to transfer the rights through sale, inher-itance, gift, and exchange even without formal titles.71 These findings reaffirmKigula (1993), Troutt (1994), and Sebina-Zziwa et al. (2000), who all concludedthat there was an active market in untitled land.72 They also affirm the assertionby Migot-Adholla et al. (1991) that indigenous land tenure systems can bedynamic; they tend to adapt to spontaneous individualization of land rights overtime, which enables farm households to acquire broader and more powerful transfer and exclusion rights over their land.73

In some cases, formalizing titles and transactions may have a negative effecton the land market. For example, survey respondents in Uganda who held unti-tled land were more satisfied with land market mechanisms than were holders oftitled land. Transactions in untitled land were common and were concluded effi-ciently and inexpensively outside of governmental structures. By contrast, trans-actions in titled land are relatively complicated and expensive. Uganda surveyrespondents cited the imposition of extralegal payments extracted by registrationofficials as the primary disincentive to using the registration system, although aminority also pointed to complicated registration procedures as a disincentive.74

The implication of these findings is that titling land and imposing formal regis-tration procedures on transactions could have the unintended effect of stifling,rather than stimulating, land markets and investments. These kinds of systemicrestraints are probably not insurmountable, however. Given sufficient politicalwill, the implementation of anticorruption and transparency measures and ofreforms directed at overly complicated procedures and poor customer service canreduce oppressive effects on land markets.

For the land market benefit, direct evidence is again lacking. It has not beenshown broadly that titling and registration have significantly increased land mar-ket activity and efficient transactions. Overall, evidence supporting the ability oftitling and registration to create the economic benefits intended is sparse,

71 See Mwebaza & Gaynor, supra n. 65, at 12–16. 72 J. Kigula, Land Disputes in Uganda: An Overview of the Types of Land Disputes andthe Disputes Settlement Fora (Makere Inst. Soc. Research, Kampala, Uganda & LandTenure Center, U. Wisconsin–Madison 1993); E. Troutt, Rural African Land Markets andAccess to Agricultural Land: The Central Region of Uganda (Makere Inst. Soc. Research,Kampala, Uganda & Land Tenure Center, U. Wisconsin–Madison 1994); A. Sebina-Zziwaet al., Land Act Monitoring Exercise I (DFID & Ugandan Ministry of Water, Lands, &Env. 2000). 73 S. E. Migot-Adholla, S. P. Hazell, B. Blorel & F. Place, Indigenous Land Rights in Sub-Saharan Africa: A Constraint on Productivity, 5.1 World Bank Econ. Rev. 155–75 (WorldBank 1991). 74 See Mwebaza & Gaynor, supra n. 65, at 17.

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although some positive support does exist. In some cases there is evidence thattitling and registration have not yielded the intended benefits. Part of the reasonthat supporting data is lacking stems from the relative youth of many titling andregistration projects. Benefits take time to accrue. The lack of data support, how-ever, makes it correspondingly more difficult to show a positive link betweentitling and registration and the alleviation of poverty.

5.4 Titling and Registration and Poverty Alleviation

5.4.1 Introduction

Many practitioners and observers are confident that titling and registration canreduce poverty. Although they mostly agree that (a) a variety of enabling precon-ditions must be met, (b) needed complementary components must be included,and (c) beneficiaries must be consciously targeted,75 many say that poverty canbe reduced.76 Often titling and registration program design documents explicitlystate that they are intended to directly benefit the poor.77 Showing an evenstronger intention to benefit the poor, some design documents point out a dangerthat titling and registration program benefits will more likely accrue to better-offlandholders, and that poorer landholders may be at risk of failing to benefit.78

Much of the design documentation sets up long horizons on project benefits,

75 Both AusAID and the World Bank have conducted audits and evaluations of their titlingand registration projects. Importantly, they both conclude that the intended benefits oftitling and registration can only be achieved if certain assumptions and preconditions havebeen met and complementary components have been provided. For example, before titlingcan give landholders formal rights and security, the tenure laws must be appropriate,unambiguous, enforceable, and available and allow equitable and easy first registration.The title must in fact be registered in an official registry. The registry must be efficient,correct, and secure, and titling itself must be affordable and accessible. Other precondi-tions for success include a basic demand for titles, the presence of basic credit mecha-nisms and capital, the efficacy and possibility of investments, potential for incomeincrease, land valuation capacities, reasonable transaction costs, a bar to rent seeking,availability of information, adequate institutional capacities, suitable public perceptions,perpetuation of systems, fee and revenue streams, and the inclusion of the poor. Satisfac-tion of all preconditions and implementation of all complementary components are cen-tral to obtaining benefits from titling and registration. See Pagiola, supra n. 2; AusAID,supra n. 1, at 7–8 and 76–77. Also see World Bank & Klaus Deininger, Land Policies forGrowth and Poverty Reduction, World Bank Policy and Poverty Reduction Report 74–75(World Bank & Oxf. U. Press 2003), for a general description of the kinds of comple-mentary support necessary for benefits to be seen.76 See Pagiola, supra n. 2, at xix–xx, 74–75; AusAID, supra n. 1.77 See Ukraine Appraisal Document, supra n. 15, at 52; Laos Appraisal Document, supran. 1, at 2, 26, and 36; and Cambodia Appraisal Document, supra n. 1, at 2, 5, 10, and 27. 78 See Laos Appraisal Document, supra n. 1, at 27.

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noting that no benefits may accrue during the life of the project and that thirty-year benefit windows can be expected.79

Poverty is measured in a variety of ways; no single indicator can usefullymeasure it.80 This makes it more complicated to determine whether titling andregistration alleviates poverty. When defining and measuring poverty, some con-centrate on objective levels of private consumption or lack of consumption ofcalories or dollars. Others look at the variety of conditions that almost alwaysaccompany consumption deprivation, such as poor housing, bad health, and bador no education.81 Yet others include in any definition of poverty control andenjoyment of assets.82 One poverty specialist has created an asset index as part ofits endeavor to assess the poverty of microfinance targets. In this index, land isone of the primary assets and indicators of household assets.83

Several things seem certain, however. If land titling and registration programsare to have an impact on poverty, they must first make good on their promise ofdelivering economic benefits, and the benefits must reach the poor: The landedpoor must receive titles, see tenure security increase, obtain more credit opportu-nities; increase investments, and increase production. The literature giving empir-ical evidence of economic benefits of titling and registration is scant. There areessentially no studies or data that link these benefits to the poor or give specificexamples of how titling and registration has reduced poverty.84 Though there aresome signs that the benefits may not be reaching the poor, there are also signs thattitling and registration can sometimes threaten the poor.

5.4.2 Are the Poor Benefiting?

Where most landholders are poor, the implication is that titling and registrationare slow to reduce poverty. In the former Soviet Union and Eastern Europe, wheremany titling and registration projects are in place, the landed poor have littleaccess to land-based credit from the financial sector, although some credit is

79 See, for example, Cambodia Appraisal Document, supra n. 1, at 44.80 See, for example, R. Lok-Dessallien, Review of Poverty Concepts and Indicators,SEPED Series on Pov. Reduc., 2–15 (UNDP 2001); and M. H. Kahn, Rural Poverty inDeveloping Countries: Issues and Policies, IMF Working Paper WP/00/78, 3–9 (IMF2000).81 International Fund for Agricultural Development (IFAD), Rural Poverty Report 2001:The Challenge of Ending Rural Poverty 1–3 (Oxf. U. Press 2001). 82 International Fund for Agricultural Development (IFAD), Rural Poverty Report2000/2001 Fact Sheet: Assets and the Rural Poor 1–3, http://www.ifad.org/media/pack/rpr/3.htm (IFAD 2001). 83 Consultative Group to Assist the Poorest (CGAP), Assessing the Relative Poverty ofMicrofinance Clients 2 (CGAP 1999). 84 See Finan et al., supra n. 37, at 2.

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obtained through donor- and government-subsidized programs.85 In many cases,even under a donor credit support program, titled land serves merely as back-upcollateral or is not considered at all; primary collateral is crops, machinery,houses, and buildings.86 The financial sector sees the land market as too risky andinefficient, and there is concern about foreclosing on people whose only asset istheir land. Many banks are in any case undercapitalized so they tend not to makelong-term loans.87 In Africa, where only 5 percent of households have access toformal credit, smallholder access to credit is a major problem.88

To reiterate, there is simply not sufficient evidence to show that the poor arebenefiting, and in some cases there are signs of the opposite. In the KyrgyzRepublic, where there was early privatization and titling and registration havebeen extensive, there are very few sales of small farm plots, and the sales that dooccur stem from migration of the Russian population from Central Asia or aredistress sales by the extreme poor.89 Moreover, although it was expected that poorfarmers would lease out their land if they could earn more money that way thanthey would by producing on the land, this has not occurred. With limited ruralindustry and few other possibilities for employment, the landed poor are lockedinto subsistence farming. They are loath to part with their land.

The lack of movement in Kyrgyz land has also restricted the ability of better-capitalized farmers, who might show some demand, to obtain more land and tomake investments that increase production.90 Finally, even with regard to tenuresecurity, few land transfers occurring within a family through inheritance are reg-istered. Rural residents trust local government and neighbors to “know” whoseland is whose.91 At least in the Kyrgyz Republic, there is little current demand bythe landed poor for the benefits of titling beyond initial security of tenure.

85 See Giovarelli & Bledsoe, supra n. 8; R. Giovarelli, Mortgage in the Bulgarian Agricultural Sector, Rural Dev. Inst. Report on Foreign Assistance & Dev. No. 104, 5(RDI 2000); R. Giovarelli, L. Rolfes, Jr., B. Schwarzwalder, J. Duncan & D. Bledsoe,Legal Impediments to Effective Rural Land Relations in Eastern Europe and Central Asia,World Bank Technical Paper No. 436, 139–147 (R. Prosterman & T. Hanstad, eds., WorldBank 1999) [hereafter Legal Impediments]. 86 See Giovarelli & Bledsoe, supra n. 85. 87 See Giovarelli, supra n. 85, at 5; Giovarelli et al., Legal Impediments, supra n. 85, at139–47. 88 Norway Ministry of Foreign Affairs, Agriculture—A Way out of Poverty 41 (Norway2002); A. Diagne & M. Zeller, Access to Credit and its Impact on Welfare in Malawi,International Food Policy Research Institute Research Report 116, 123–129 (IFPR 2001). 89 M. Childress, R. Giovarelli, R. Shimarov & K. Tilekeyev, Rapid Appraisal of LandReform in the Kyrgyz Republic 5 (USAID 2003). 90 See id. at 48. 91 R. Giovarelli, C. Aidarbekova, J. Duncan, K. Rasmussen & A. Tabyshalieva, Women’sRights to Land in the Kyrgyz Republic 23 (World Bank 2001).

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As mentioned above, in Uganda, where most landholders are poor, one studyshowed a very active land market outside of any titling system but very little useof formal credit to finance land purchases. Land titling had not significantlyinfluenced market information or price-setting. Respondents said that the weightof a title in setting the price of land ranked lower than soil quality, distance fromroads, and general location. A right to sell land was verified primarily throughneighbors and consultation with local government. Land registration recordsrarely played a role even in verifying boundaries.92 In Uganda as well, it seemsthe landed poor have little current demand for the benefits of titling.

Titling and registration projects could probably be better designed to reach thepoor. To date, most titling project preparation, design, and monitoring havelacked thorough treatment of how to target the poor and assess how the poor willor will not be affected, although the design of more recent World Bank titling andregistration projects does include a social assessment that touches upon poverty.Design documents also vow to closely monitor follow-on poverty impacts.93

Most recent World Bank titling and registration project completion documents donot thoroughly address how the project affects the poor.94

One other tool does merit mention. The World Bank’s poverty and socialimpact analysis (PSIA) process looks at how interventions affect the poor andvulnerable. A PSIA is not required during the design of all interventions, butrecent statements from the Bank’s Social Development Department have stressedthe suitability of PSIAs for land reform projects. Advocates of the PSIA processare critical of the effectiveness of some past land interventions in alleviatingpoverty. They are convinced that land reforms (a) have been unsuccessful inreducing poverty; (b) have caused conflicts affecting the poor; and (c) have beenexclusive and discriminative. For example, a 2003 PSIA of possible land inter-ventions in Zambia suggested that a proposed large-scale titling program wouldadversely affect the poor. Instead it proposed improvements to infrastructure,stronger legal and institutional arrangements to protect women’s rights, improve-ments to dispute resolution systems, and broader recognition of customary landownership.95 While the PSIA approach may not be wholly suitable for use duringproject design, some of its tenets might be useful in better targeting the poor andin assessing project impacts on poverty.

92 See Mwebaza & Gaynor, supra n. 65, at 16. 93 See Honduras Land Administration Appraisal, supra n. 20, at 12–14.94 See, for example, Honduras Land Administration, supra n. 18.95 S. Jorgensen, Integrating Land Policy Issues into Poverty and Social Impact Analysisand Country Strategies 4–11 (World Bank 2003) http://lnweb18.worldbank.org/ESSD/essdext.nsf/24DocByUnid/C157A5D06EE30C7F85256CED007F97B7/$FILE/SteenLauJorgenson.pdf.

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Other project sponsors are also aware of the need to better target the poor.AusAID’s review of its participation in large land titling projects concluded thata case could be made that titling can support poverty reduction, but there was aneed to actually make the case and better target the poor and at-risk. To make thecase, AusAID called for evidence of impact, effectiveness, relevance, efficiency,and sustainability. To better target the poor, it recommended that countrywidemacro indicators be created before projects are implemented and the resultinginformation used to design the intervention.96

The kinds of information yielded by the World Bank’s PSIAs and AusAID’smacro indicators might then be profitably used by titling and registration projectdesigners and implementers to answer questions about how better to target thepoor, thus providing the evidence that is now lacking. Do the landed poor wanttitles or is tenure security already provided for by customary mechanisms? If theyget titles, is there demand for other benefits? Can they have access to and takeadvantage of credit? Increase investment? Buy and sell land? If not, are the costsof titling worthwhile? If the costs are in fact projected to be worthwhile, whatkinds of supporting measures should be put in place to move the poor along to apoint where they can use these benefits?

5.4.3 Are the Poor Excluded?

Sometimes the poor are excluded from titling and registration efforts and fromenjoying the follow-on benefits. Of course, in one central respect titling and reg-istration are all about exclusion. The intentionally limited and conclusive natureof land titling and registration is obviously aimed at formalizing the validity andsecurity of the ownership of those deemed legally designated to hold it. Eco-nomic and public policy decisions have made this sort of exclusion the primaryobjective. But sometimes the intended exclusionary nature of titling and regis-tration can yield results that might seem unfair. For example, systematic titling ofland to former collective farm workers in the former Soviet Union is or was lim-ited to qualifying collective farm workers and their families. That meant somewho were peripherally associated with the collective farming activities (“socialsphere workers,” such as teachers and medical personnel) were excluded fromreceiving land, as were those who were not collective farm members. In thesecases, the legislative drafting or project design reflects resource allocationchoices to exclude some.97

96 AusAID, supra n. 1, at 11–14. 97 M. Gorton, Agricultural Land Reform in Moldova, INTAS Research Project, INTAS99-00753, 12 (U. Newcastle 2000); Moldova Land Code, art. 12, Allocation of EquivalentLand Shares into Private Ownership (including all amendments as of July 22, 1999).

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Other forms of exclusion exist as well, and some types of titling and registra-tion are more likely to exclude than others. For example, sporadic titling and reg-istration may be more likely to exclude the poor than systematic titling and registration, which is generally regarded as potentially more inclusive. System-atic titling is the identification, adjudication, surveying, and formalizationthrough the issuance of titles of all eligible parcels within a single area during asingle period. A final step in systematic registration is entering the title informa-tion into a formalized registration system. Registration often, though not always,accompanies titling. Titling registration is considered sporadic when those eligi-ble make application or otherwise trigger entry into the system for formal recog-nition and formalization of rights.

The World Bank and most other sponsors have expressed a preference for sys-tematic titling and registration when the case can be made for land rights for-malization. Systematic efforts are seen as best able to take advantage ofeconomies of scale in measurement, adjudication, and conflict resolution. Similarly, the complementary components that are seen as necessary for titlingto provide theoretical benefits, such as credit support measures, are better ableto take advantage of those economies of scale. Systematic efforts are also inclusive; they are seen as the best path to including the poor, the indigenous,and other marginalized populations. For example, systematic programs can betargeted to areas where the poor hold land so as to give them early benefits oftenure security and economic benefits. Moreover, systematic first registration isusually subsidized, allowing poor land-rights holders to formalize their rightswithout incurring costs that might otherwise prevent them from participating. Tobest target any population during systematic registration projects, such measuresas public information campaigns and accessible and swift dispute resolution arenecessary. Systematic projects are also able to take advantage of economies ofscale.98

Sporadic approaches can exclude rights holders for several reasons. First, thepoor are usually bereft of the resources (time, money, information, education)needed to take advantage of opportunities or to trigger enabling events(a purchase, for example). Second, sporadic efforts are often characterized byother conditions that exclude participants from titling and registering property.For example, expensive land surveys can deter rights holders from formalizingrights, and because users usually fund sporadic titling and registration servicesat least in part, onerous costs can create accessibility problems. Also, proce-dures and requirements can be opaque and unknowable, further deterring

98 K. Deininger & H. Binswanger, The Evolution of the World Bank’s Land Policy: Principles, Experience, and Future Changes, 14(2) World Bank Research Observer 260(World Bank 1999); Deininger, supra n. 76, at 56–57.

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access.99 Rent-seeking by registration officials can also keep rights holdersaway. Finally, the exclusionary nature of sporadic approaches is manifested bythe great amount of time it takes to sporadically register most or all proper-ties.100 One 1998 estimate of the time to complete sporadic titling in Indonesiaand to bring all eligible properties within the system at the then-current rate wasninety years.101 Until well into that ninety-year period, most land rights holders—most of them poor—would not receive the intended benefits of titlingand registration.

Cambodia provides some examples of the shortfalls of sporadic registration.There, the approach, in part and at first, had focused on residential and commer-cial land, excluding agricultural parcels because registration infrastructure islargely absent in rural areas. There was also a lack of trained local staff, a failureto consistently follow procedures, insufficient equipment and archiving capabil-ity at the local level, inaccurate survey plans, the entry of inaccurate or fraudu-lent information (to avoid transfer taxes), and corruption. That is why the Cambodian government has decided to move resources to systematic mass registration, which will take advantage of mapping economies, opportunities forwidespread dispute resolution, and survey detail. The approach will promoteaccessibility by displaying graphic and textual documentation in the villages forthirty days, soliciting input and appeals, and resolving disputes through bodiescomposed of local community leaders and titling program representatives.102

An improved sporadic titling system will be simultaneously pursued with theaims of simplicity, transparency, and accuracy.103

However, systematic titling and registration can also exclude certain rights-holders. During systematic efforts, holders of uncertain or irregular rights can beprevented from obtaining title.104 Because of the costs of resolving the status ofthese problem parcels, they are often left unregistered and their titles left undone,

99 L. Holstein, paper presented at the International Conference on Land Tenure Adminis-tration, Towards Best Practices from World Bank Experience in Land Titling and Regis-tration 16–17 (U. Fla. Geomatics Program, Nov. 12–14, 1996) (copy on file with theauthor).100 See id. at 16. 101 C. Grant, paper presented at the 39th Australian Surveyors Congress, When TitlingMeets Tradition 2 (Launceston, Australia, Nov. 8–13, 1998) (copy on file with the author).102 M. Torhonen, paper presented at the International Conference on Spatial Infoormationfor Sustainable Development, Systematic Registration for Cambodia: Why and How? 1–6(Nairobi, Kenya, Oct. 2–5, 2001) (copy on file with the author); see Cambodia AppraisalDocument, supra n. 1.103 H. E. S. Setha, paper presented at the Regional Workshop on Land Issues in Asia,Discussion Paper 4–5 (Phnom Penh, Cambodia, June 4–5, 2002).104 See Holstein, supra n. 99, at 17.

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subject to later resolution; or they are registered in the name of the State. Prob-lem parcels are typically those subject to dispute, lacking evidence of ownership,or irregularly developed. In Georgia, up to 50 percent of residential plots havegone unregistered in some places because of encroachments and irregularities.105

In Albania, up to 30 percent of the parcels in some areas are registered in thename of the State because of unresolved issues.106 In both cases, the very peoplewho have clouded title, who are consequently in the most need of resolution andformalization, are excluded from the process. It is again the poorer rights holderswho are most likely to lack the resources to clear those rights.

Women and other disenfranchised groups—often the poorest of the poor—are at times inappropriately and inequitably excluded from tenure security andthe consequent benefits provided by titling and registration. For example, astudy of data and anecdotal evidence from titling efforts in Honduras, Colombia,Mexico, Peru, Ecuador, and Chile shows that women do not receive land rightsunder many titling and registration projects.107 Reasons for their exclusioninclude:

• Legislation that does not provide for joint titling of land to couples (evenwhen the law conflicts with constitutional or civil code provisions thatestablish women’s rights to property)

• Land legislation that purports to be gender-neutral and does not expresslyprovide for establishing and protecting women’s land rights when men arethe customary heads of household

• Legislation that makes it voluntary to jointly title land (in conjunction withtitling and registration procedures that do not facilitate joint titling, andsometimes with default marital regimes that presume separate property)

• An impetus born of the individualization of land rights that creates a ten-dency to restrict title to only one person per household

• Requirements that consensual but not legally formalized unions be offi-cially registered before joint titling can occur

• Requirements that titling program participants have the civil capacity thatis awarded upon registration to vote

• Land titling publicity programs that target only men’s attention and interestgroups and associations

105 J. Salukvadze, Comparative Analyses of Land Administration Systems: with SpecialReference to Armenia, Moldova, Latvia and Kyrgyzstan 37 (2002), comments on paper byGavin Adlington (copy on file with author). 106 R. Gaynor & D. Bledsoe, Evaluation of the Albania Land Market Project 5(USAID/ARD 2000). 107 See Deere & León, supra n. 17, at 188, 294–300.

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• Unwillingness of functionaries (because of a desire for expediency) tocomply with program requirements to confirm marital or union status

• Institutional inertia in pushing for recognition of joint titling as the normand in creating an environment of gender awareness and sensitivity.

These exclusionary circumstances are in part the result of several hurdlesfaced by women. First, (usually inaccurate) gendered perspectives about divi-sions in agricultural labor create an environment where women are not taken seri-ously as agriculturalists. Second, their low independent income prompts some toquestion women’s ability to pay for land or make mortgage payments. Third,women are frequently unaware of their rights to titled land.108 These hurdles,along with the specific reasons for their exclusion from earlier titling and regis-tration projects, are signs that particularized targeting of women would be usefulduring titling and registration projects.109

However, there are some legal tools that can be used to prevent exclusion ofthe poor. For example, laws have been passed to preserve land rights for a limitedperiod, or to permit later cure of the clouded rights that create problem parcels.The English title registration system, set forth in large part by the Land Registra-tion Act (1925), permits possessory and qualified titles to be registered.110

Possessory title allows registration “as is”—all existing defects continue in theregistered title, but subsequent interests (arising after a transaction, for example)must be registered. This could lower the costs of cleaning up title for registration;prevent claimants from being permanently excluded by leaving latent, unexer-cised rights in place, and reduce the number of problem parcels registered in thename of the State. Title is subject to all latent rights existing at the time of regis-tration, but after fifteen years without challenge, the possessory title becomesabsolute.111

Qualified titles are those registered with broad exceptions evident on the faceof the certificate of title. A qualified title can only be converted to an absolutetitle if the defect is cured or evidence that the defect has been cured in the pastlater comes to light.112 The Singapore land title registration system also recog-nizes provisional (called “qualified”) titles, similar to the English system. This

108 See id. at 294–27. 109 See generally, chapter 3 of this book, for a more extensive discussion of land titling andregistration and women’s rights and access to land.110 T. Fiflis, English Registered Conveyancing: A Study in Effective Land Transfer, 59 Nw.U. L. Rev. 470, 482–83 (1964).111 S. Simpson, Land Law and Registration 214–15 (Cambridge U. Press 1976). 112 United Nations Economic Commission for Europe (UNECE), Key Aspects of LandRegistration and Cadastral Legislation, Part 1 48 (UNECE 2000).

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allows title to be issued contingent on there being no challenge to the title for thatparcel over a set number of years. Singapore differs from England in that thestatute of limitations for conversion of title from provisional to absolute is onlyfive years rather than fifteen.113

These kinds of legal tools might be particularly suitable where it is suspectedthat there are many conflicting claims to the same land parcels that are unlikelyto be resolved. Where poor people do not have resources to make and support aclaim, these tools can provide a legal safety net that preserves rights until theclaimant is able to pursue the claim. Of course, the disadvantage of possessoryand qualified titles is that the protection they provide is more limited and titleholders have less certainty.114 This lack of certainty, which would affect bothtitleholders and others if the property was the subject of a market transaction,would tend to generally inhibit market activity.

5.4.4 Do Titling and Registration Create Landless Poor?

Titling and registration can create landlessness in several ways. First, in rarecases, individualization and titling of otherwise commonly used lands can createlandlessness when the common users no longer have access.115 This can occurwhen laws permit individual users to apply for and receive title to land that is alsobeing used by others. Second, titling and registration can create landlessnesswhen the benefits of the process are inappropriately captured by a few or whenthe process is otherwise corrupted and has inequitable results.116 Capture canoccur when bribes are permitted to influence titling decisions or when titlingprocesses require fees or other costly requirements (surveys, for example) thatthe current user or tenant cannot afford but that can be afforded by another partywho is not due the formalized right. Third, titling and registration can create land-lessness when opportunities for increased mortgage lending result in foreclosuresdue to onerous or inequitable foreclosure laws.117 Lack of notice of default andof reasonable opportunities to cure default, as well as provisions for unreasonableloan acceleration upon default, can cause landlessness by way of foreclosure.Finally, when titling and registration are not accompanied by measures thatensure adequate access to credit and markets, technical assistance, and extension

113 See Simpson, supra n. 111, at 215–16.114 See id. at 216–18. 115 See Bruce, supra n. 24, at 81–84; and Muhereza & Bledsoe, supra n. 24, at 12–13. 116 See Quan, supra n. 25, at 35–36. 117 See Giovarelli et al., Legal Impediments, supra n. 85, at 140–47.

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services, some smallholders may have to sell or abandon their land, often to theadvantage of better-situated landholders.118

However, there are some tools that can help prevent landlessness from beingcreated in these ways. For example, to prohibit individuals from formalizingclaims to land that is otherwise commonly used, registration laws can be craftedto require a showing that an individual claim of title is not encroaching on landthat might otherwise be common property (forests, wetlands, and grazing lands,for example). Another solution is to preserve a right to appeal individual formal-ization of a land right for common property users who can show encroachmentupon a long and recognizably common property resource. Similarly, titling andregistration laws can be crafted to expressly foresee corrupt practices, extralegalfees, failures to convey joint title, and mortgage foreclosures that are inappropri-ately swift or that preclude reasonable cure.

Because the poorest landholders are often in need of subsistence resources orknow the least about their rights, the law has stepped in to protect them. To pro-tect new landowners from the perils of speculation and to prevent unwise sale ofnewly obtained land, some countries impose moratoriums on land sales for aperiod after land is originally privatized or titled. However, many moratoriumshave been suspended or allowed to lapse, primarily to unfetter land markets. InArmenia, for example, a three-year moratorium that was enacted when land wasprivatized and distributed lapsed in February 1994.119 In Ukraine, a six-year salesmoratorium expired in 2005 although exemptions made most agricultural landsubject to sale.120 A Kyrgyz moratorium on the sale of agricultural land was putinto place when land was privatized and allocated, but it was lifted in September2001.121 The Moldovan Land Code contained a ten-year moratorium on sales, butit was lifted in late 1996 when it was declared unconstitutional.122 Some countrieshave attempted to protect new landowners from the danger of mortgage

118 See AusAID, supra n. 1, at 30. Unfortunately, some countries enact laws that simplystrip land rights from new rights holders. For example, in a measure that divested unwit-ting land rights holders of their right to convert land shares into demarcated parcels, thenew Kazakh Land Code terminated the validity of formalized land shares if they are noteither transferred as contributions into a joint stock company or production cooperativeor converted into private family farm parcels, by January 2005. Land Code of Kazakhstan,art. 170 (2003). 119 Z. Lerman & A. Mirzakhanian, Private Agriculture in Armenia 7 (LexingtonBooks 2001). 120 Land Code of Ukraine, sec. X, art. 15 (2001). 121 Kyrgyz Republic Law on Administration of Agricultural Land (2000); Kyrgyz Republic Regulation No. 427 on the Procedure of Purchase and Sale of Agricultural Land(Aug. 13, 2001). 122 See Giovarelli et al., Legal Impediments, supra n. 85, at 110.

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foreclosure by setting moratoriums on mortgages. For example, a 1997 Russianlaw prohibited mortgages on agricultural land.123

Many Indian States place sales moratoriums on the transfer of land obtainedthrough land reform or other government grant. For example, the State of WestBengal has restricted alienation of land held by members of Scheduled Tribes toprotect them from improvident disposition of land. The West Bengal law also pro-hibits the transfer of land given to the landowner by the government, except forcertain mortgages.124 Similarly, to protect landowners from inappropriate trans-fers, the State of Karnataka prohibits for fifteen years the transfer of surplus landgranted to a landowner by the State, except for some mortgages. Also in Karnataka, whenever land tenants have been deemed “occupants” (and conse-quently been awarded long-term use rights and a future opportunity to own land),any transfer is prohibited, except for certain mortgages.125

In an attempt to provide a cure for improvident land transfers, West BengalState in 1973 enacted the Restoration of Alienated Land Act. It says that anytransfers by landowners of less than two hectares that were made after 1967 canbe voided and the land returned to the original owner if it was a distress sale madenecessary by a need to meet a family’s basic maintenance or to support the costof cultivation. However, there are no known examples of the act ever being used,and it expired in 1980. To get the land returned, the transferor needed to apply andthen make a showing of the facts at a quasijudicial hearing. If successful, thetransferor was to pay the transferee the amount the transferee paid for the land,plus 4 percent interest, plus the cost of any improvements.126

Such legal tools might be used to protect new land-rights holders from losingtheir land, but they bring disadvantages as well. By limiting or voiding land trans-fers, the tools tend to fetter the land market and make transactions more risky.Positive redistributional effects of the land market can be stifled and higher landprices may result.

Despite the somewhat axiomatic certainty of some, there is simply no hardevidence that land titling and registration alleviates poverty. In fact, the impactsof titling and registration on poverty, good or bad, have not been determined. Norhas there been any systematic approach to gauging those impacts, although thePSIA template might be a start. There does not seem to be a systematic way totarget the poor either. Many titling and registration project documents state thatpoverty alleviation is a goal, but few set out how the poor are to be targeted. Asto exclusion of the poor and women and the creation of landlessness, there is no

123 Russian Federation Law on Mortgages, art. 63 (No. 102–FZ, July 16, 1998).124 West Bengal Land Reforms Act, sec. 14B (1955). 125 Karnataka Land Reforms Act, sec. 61 (1961). 126 West Bengal Restoration of Alienated Land Act (1973).

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hard evidence of the extent of these impacts either. However, it is likely thatthere are exclusions and that some of the poor lose their land as or after rightshave been formalized. Thus, though there are legal tools that can help preventexclusion and landlessness, they must be exercised cautiously. They can alsorestrain land markets and efficient transactions.

5.5 Conclusions and Recommendations

Despite a lack of clear evidence that they deliver the intended economic benefitsor directly alleviate poverty, land titling and registration will likely continue to bea widely pursued development activity.127 The lack of evidence is not surprising.Titling and registration projects are relatively young; the benefits they mightdeliver can take decades to develop. It is also difficult and costly to benchmarkland tenure situations, and probably even more difficult and costly to monitorresults so as to gauge meaningful impacts and show causal attribution. Povertyimpacts, good and bad, are among the hardest to pin down.

Titling and registration sponsors and donors have learned that titling and reg-istration must be preceded by enabling preconditions and that the projects mustbe accompanied and followed by a variety of complementary components. Spon-sors and donors also know that beneficiaries, including the poor, need to be tar-geted before they will be reliably and sustainably touched by benefits.

This section highlights several issues already mentioned and provides ideasabout how to respond to them.

Issue: A small universe of comparative information on the performance andimpacts of titling and registration projects informs decisions on whether to pro-ceed with such projects and on their design and implementation. Benchmarkingand impact assessment have not been standardized. Project design and imple-mentation are often based on assumptions derived from a few projects (such as theone in Thailand), and the situation in the target country or locality may be quitedifferent from those in the country on which the assumptions are based.

Relative few projects are used as evidence to show that titling and registrationcan increase tenure security, prompt investment, create credit opportunities, andenhance land markets—all of which are intended to spur economic growth andalleviate poverty. Data gathered from these few projects are lacking or incomplete.Methodologies for gathering information and assessing its meaning are inconsis-tent. Although observers endeavor to qualify their observations and conclusions,their information is often used to support decisions to proceed with new projects,and it is then used to actually design and implement them. Additional data onexisting titling and registration programs, analyzed in a scientific way, are needed

127 See, for example, AusAID, supra n. 1, at 49–55; Strachan, supra n. 1, at 23–24; andIFAD, supra n. 81, at 74–75.

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both to justify proceeding with projects in other countries and to help design theprojects (see recommendation on feasibility assessment and design below).

Recommendation: Donor agencies involved in titling and registration projectsshould collaborate on standardized approaches to monitoring and assessing themand on characterization of the data gathered. Project designers should guardagainst incorporating assumptions into new projects that are based on the uniquecircumstances within another country.

Specifically, the World Bank, the other development banks, the primary bilat-eral donor agencies, and a few independent experts should form a single taskforce charged with creating a standardized approach to benchmarking, projectmonitoring, and evaluation. The task force should create design and targetingguidelines that prompt designers to carefully vet assumptions based on othercountries. The task force should operate pursuant to a memorandum of under-standing that is sufficiently general that it prompts agreement. The task forceleader should be selected on the basis of leadership, management, and consensus-building skills, rather than familiarity with titling and registration theory andpractice. The task force might consider sponsoring a grant award competition thatsolicits approaches on the basis of a performance specification, with a significantmonetary grant dedicated to the funding of the best proposal.

Issue: Poverty targeting and impact analysis are frequently not a significant partof project feasibility assessment and design.

Presuming that one of the goals is to target and benefit the poor and oftenexcluded groups, such as women, thereoughtnot to bemuch distinction between thesort of analysis done to make sure that the poor are targeted and that done to informdecisions about proceeding with a project and how it should be designed. The linkbetween the economic benefits of titling and registration and the alleviation ofpoverty needs to be articulated so that targeting is meaningful and impacts can bemeasured. It is difficult to target the poor and to assess impacts upon them when theconnections between economic development and poverty alleviation are unclear.

Recommendation: Titling and registration project performance, cost/benefitanalysis, and design tools should be driven in large part by assessment of povertytargeting and poverty impact.

Those typically responsible for poverty and social impact assessments shouldparticipate in the task force charged with creating tools. There should be a realconnection between the poverty targeting and impact assessment and the projectdesign analysis. The poverty linkage should be seen less as an end-of-process ratification and more as a start-of-process data-gathering and design tool. Thetask force should also be charged with developing standardized approaches topoverty targeting and impact assessment.

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Issue: Titling and registration can be exclusionary and can create landlessness. Inappropriate and unforeseen exclusions can occur during both systematic and

sporadic titling efforts; intentional exclusions can be severe and unforgiving.Women and other disadvantaged groups can be excluded by virtue of their statusalone. In some cases, landlessness is created or abetted by titling and registrationefforts.

Recommendation: Exclusions and landlessness should be a focus of povertytargeting and impact assessment. Legal and other tools should be used as neededto prevent or mitigate exclusions and creation of landlessness.

Possessory and qualified titles, moratoriums on and prohibition of transfers,common property protections, restoration of transferred land, and requirements forlegal education should all be explored for appropriate use. As with any other com-plementary component in a larger titling and registration project, these legal toolsshould be refined so they can provide suitable protection but, to the extent possible,not limit investment and stifle land markets. If the chilling effect on investments andland markets is too severe, use of the tools may need to be modified. Continuingassessment will be necessary. Other causes of landlessness that may accompanytitling and registration, including failure of credit markets and the lack of a socialsafety net, should be explored in detail during project design and implementation.

Issue: The exclusion of the poor, women, and other groups from the universe oftitling and registration beneficiaries probably results in part from lack of oppor-tunity for these groups to be heard or seen while projects are being designed.

If input and perspectives are missing, needed project sensitivities will likely bemissing, or at least not be realistic about how to prevent exclusion.

Recommendation: Members of typically excluded groups should be con-sulted and studied with particularity when information is gathered to inform proj-ect design.

Investigative fieldwork should be done among these groups, and data-gathering techniques should be used that can obtain the needed informationfrom them. Targeting and impact assessment efforts should solicit the informa-tion that would highlight the needs of excluded groups. A number of well-knownmeasures can be used to promote women’s participation in titling and registra-tion, for instance, such as consciousness-raising, joint ownership and titlingmandates, education of field staff, and assessment of customary realities andtheir relationship to the formal law. Their use during targeting efforts should beconsidered.128

128 See generally, chapter 3 of this book for a more extensive discussion of land titling andregistration and women’s rights and access to land.

C H A P T E R 6

Property Rights and Environmentally SoundManagement of Farmland and Forests

Robert Mitchell*

This chapter provides a broad overview of environmental challenges posed byexpansion and intensification of agriculture and increasing pressures uponforests. It examines the environmental impact of a number of legal tools used toinfluence land and natural resource use in farming and forestry systems. Thoughan exhaustive examination of trends and legal tools is beyond the scope of thechapter, and each of its sections has been the topic of book-length treatments, abroad overview may be helpful to explore the interplay between property rightsand environmental concerns—two topics that are often discussed separately.

6.1 Introduction

The global population is estimated to reach roughly 8 billion by 2025, resulting insignificant increases in the demand for food crops, meat, and forest products. Sat-isfying that demand will increase environmental stress on many ecosystems as theresult of some combination of agricultural extensification (bringing new landunder cultivation) and intensification (producing more per unit of current farmland).1 Extensification has continued in many regions in recent decades. From1961 through 2000, for example, area under cultivation increased 74 percent inBrazil (to 261,406 hectares) and 60 percent in China (to 548,658 hectares).2

While area under cultivation increases, forests shrink as the result of bothdemand for forest products and clearance of forests to create agricultural land and

175

* Robert Mitchell is a Senior Attorney at the Rural Development Institute (RDI) in Seat-tle, Washington. Information about the Institute can be found at http://www.rdiland.org.The views expressed in this chapter are the views of the author and do not necessarily rep-resent the views of RDI.1 P. J. Gregory et al., Environmental Consequences of Alternative Practices for Intensify-ing Crop Production, 88 Agric., Ecosystems & Env. 279, 280–81 (2002).2 Food and Agriculture Organization of the United Nations, http://apps.fao.org/page/collections?subset=agriculture (accessed January 2006).

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rangeland. Even after accounting for reforestation, globally since 1990 there hasbeen an estimated annual net loss of 9.4 million hectares of forest (0.22 percentannually), of which most was natural forest in the tropics.3

Unless managed carefully, increased farming, whether through intensificationor extensification, may have a host of negative environmental impacts, includingsoil erosion, siltation of reservoirs, increased risk of flooding, loss of plant andanimal species, soil mining, salinization of soil, water mining, water pollution,and climate change. Deforestation of whatever type may eliminate wild animaland plant species, compromise watershed quality, and reduce global capacity tosequester greenhouse gases. Box 6–1 summarizes these and other impacts.

Land and resource management policies can play an important role in pre-serving and facilitating sustainable use of forests, arable lands, and rangelands.In less developed countries, land and resource management policies also play asignificant role in determining the extent to which the poor and other marginal-ized groups share in the benefits of increased agricultural production or preservation of forests and rangelands. Policies that exclude such groups from the benefits of resource use may be not only inequitable but also socially

Box 6–1. Negative Environmental Impacts Associated with Farming and Forestry

i. Wildlife and natural habitat: elimination of animal and plant species,elimination of natural habitat, desertification

ii. Soils: erosion, soil mining, salinization, desertification, loss of soilbiota

iii. Water: sedimentation that reduces reservoir capacity for flood control,clogs river channels, damages fisheries, and impairs drinking waterquality; water pollution caused by chemical fertilizers, pesticides,herbicides, and animal wastes.

iv. Crop health: crop monocultures vulnerable to pests and disease.

v. Climate change: regional and global changes caused by loss of CO2

sequestration capacity, changes in rainfall through alteration of water cycle.

Source: Summarized by author from a variety of authorities.

3 Food and Agriculture Organization, http://www. biodiv.org/programmes/areas/forest(accessed February 2004).

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unsustainable over the long run, contributing to political destabilization.4 Forthese reasons, land and natural resource management policies should not bebased solely on consideration of the environmental impacts of resource use, anymore than they should be based solely on questions of who benefits fromresource use.

State political and administrative capacity to implement desired policies islikely to greatly influence a State’s options for managing resource use. Thus, forexample, a State that lacks the political or administrative capacity to accomplishagricultural intensification in ways that allow poor and marginalized groups tobenefit may be justified in adopting a policy of agricultural extensification thatmore easily allows poor and marginalized groups to benefit, even though exten-sification may increase the risk of environmental harms. Though political andadministrative capacity are not fixed in the long term, they may significantly con-strain options in the short and medium term.

States attempt to implement land and resource use policies through a variety ofmechanisms, including subsidies and tax incentives for resource users, public edu-cation programs, and construction of physical infrastructure to aid irrigation or con-trol flooding. They may also adopt and implement legislation to advance land andresource use policy. Rather than examine the panoply of mechanisms for influenc-ing resource use, this chapter attempts to review the land and resource conservationmerits of certain legal interventions, with an emphasis on the role of property rights.

Although many factors contribute to the effectiveness or noneffectiveness oflaws applied to influence resource management, one important factor is thecapacity of state and local institutions to implement such laws. Whereas a lawmay effectively advance some goals, it may be less effective, irrelevant, or evencounterproductive in achieving other goals. For example, while the form of landtenure may influence resource use and management practices that maximize andsustain onsite benefits of farming, land tenure may often be much less importantfor minimizing externalities of farming that affect the wider public, such as thedownstream effects of erosion control or the costs associated with climate forc-ing and loss of species.

This chapter is organized in three parts. The next section briefly reviews poten-tial environmental and social harms associated with farming and use of forests.Due to space limitations, it does not separately treat land and resource issuesrelated to livestock raising, despite its often overriding importance. The next sec-tion argues for classifying laws for managing land and resource use into three cat-egories related to the capacity of individuals, groups, and the State to enforce thelaw. The final section gives examples of laws for regulating land and resource use.

4 R. L. Prosterman & J. M. Reidinger, Land Reform and Economic Development 7, 10(Johns Hopkins U. Press 1987).

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6.2 Framing the Issues

Changes to the natural environment are caused by many processes, including nat-ural processes (not human-induced) that occur over long cycles. While it is easyto overestimate the impact of human activity on the environment,5 nevertheless,human use of land and natural resources is responsible for profound environ-mental changes, especially at the local level. Two such uses are farming and useof forests.6

6.2.1 Farming

Negative environmental impacts directly associated with farming may be eitheronsite or offsite (externalities). The primary negative onsite impacts are reductionof quality of soils and loss of soils through erosion, but may also include loss ofplant and animal species. While loss of soil and reduction of soil quality undoubt-edly represent losses to the larger society, they are most profoundly felt by farm-ers who have an ongoing relationship with the land; they are therefore properlyregarded as private costs of farming. Significant potential negative externalitiesassociated with farming are downstream flooding caused by reduced reservoircapacity; reductions in water quality because of sedimentation deposits; waterpollution caused by run-off of chemical fertilizers, pesticides, and animal wastes;and loss of species caused by, for example, cropping decisions and improper useof chemicals and pesticides. Negative offsite impacts affect the larger communityand are therefore properly regarded as public costs of farming.

In developing countries, where most families earn their living from agricultureand where a sizable proportion of families are economically vulnerable, land andresource policies inevitably have significant impact on the poor and other mar-ginalized groups.7 Ideally, land and resource policies that seek to safeguard theenvironment should also seek to safeguard and expand opportunities for the poor

5 M. Leach, R. Mearns & I. Scoones, Environmental Entitlements: Dynamics and Institu-tions in Community-Based Natural Resource Management, 27(2) World Dev. 225, 230–32(1999).6 The chapter discusses farming and forests separately. In some ways this may be an unnat-ural organization of the discussion, since farm policy can greatly affect the rate at whichforests are converted to farmland or rangeland, and the national policies of some countrieseven encourage deforestation in order to expand land under cultivation or pasture. How-ever, division of the discussion between farming and forests may be useful in isolatingissues, considerations, and legal tools that are unique to conservation of farmland on theone hand or of forests and forest land on the other. It is important in each case to considerwhether a given policy or legal tool is likely to impact both farms and forests.7 See generally, World Bank & Klaus Deininger, Land Policies for Growth and PovertyReduction, World Bank Policy & Poverty Reduction Report (World Bank & Oxf. U. Press2003).

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to participate in the benefits of farming. Indeed, policies that neglect the interestsof the poor can exacerbate pressures on the environment. As Parnwell asks withreference to poor farmers in northeast Thailand:

[H]ow do you convince the head of a poverty-stricken household that heshould not grow cassava on the small patch of upland that he works, per-haps illegally, and which provides his only source of cash income? How canyou persuade him that he should invest more manpower and capital inimproving his single hectare of riceland which is flooded every other year,when half of his family spends most of the year working in Bangkok?8

In addition to direct negative impacts from farming, agricultural extensifica-tion often replaces natural forests and wetlands with farms and rangelands.Extensification may have important negative environmental consequences,including loss of biodiversity and climate change. Even where extensificationdoes not directly replace forests, if lands brought under cultivation are locatednear forests, farming households may negatively impact forest health by remov-ing trees for use as fuel or building material and may impact wildlife populationsthrough increased use of biocides and increased hunting.9 The relationshipbetween agricultural extensification and loss of natural forests is one of the mostimportant areas where land policy impacts the environment.

The potential public costs of agricultural land policies therefore include bothoffsite and onsite environmental degradation and may directly affect the well-being of poor and marginalized groups that are denied access to land andresources. In the case of farming, the challenge is to find legal tools that advancestate policies that simultaneously (1) promote ecologically sustainable farmingby minimizing onsite and offsite environmental costs; and (2) ensure that the poorparticipate through equitable access to land resources. These public costs and thelegal tools that may help address them are explored in more detail in the last partof this chapter.

6.2.2 Forests

Forests are logged to supply timber and paper and are cleared for agriculturalextensification and grazing. Loss of forests can contribute to local flooding,regional and global climate change, and loss of animal and plant species dependent on natural forest. Survival of wild animal species is threatened by

8 M. J. G. Parnwell, Rural Poverty, Development and the Environment: The Case of North-East Thailand, 15(1) J. Biogeography 199, 207 (1988).9 See, for example, G. Ledec, Effects of Kenya’s Bura Irrigation Settlement Project on Biological Diversity and Other Conservation Concerns, 1(3) Cons. Biol. 247, 250–55(Oct. 1987).

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overhunting, especially by local populations. Animal and plant species may alsobe threatened by replacement of natural forest with monoculture tree crops.

Many forests serve important social functions, providing homes and an eco-nomic base for forest-dwelling communities and supplying fuel wood and otherproducts to households in villages near the forest. Forest resources, includingnontimber products, can be especially important to the household economy of therural poor. Overharvesting of both timber and nontimber products can stress thehealth of forests.

The challenge is to find policies that (1) promote sustainable use of forests;(2) promote preservation of watersheds and water quality; (3) promote preserva-tion of animal and plant species in forests; and (4) balance those needs against theneeds of human populations that depend upon forest resources. We are interestedin identifying legal tools that can help implement such policies. These challengesare explored in more detail in the last part of this chapter.

6.3 Property Rights: The Importance of Enforceability

Rules allow States, groups, and individuals to influence and to predict how otherswill behave—what they will do or refrain from doing in particular situations. Forthis discussion we examine both the rules that prohibit or authorize human actionand the processes and institutions through which the rules are interpreted andenforced. But it is surely obvious that in deciding how to behave, individuals con-sider not only the law but also their own unique social, political, economic, andphysical environment.10

We are here concerned primarily with rules that take the form of formal laws(including, for example, regulations and decrees) promulgated by States and stateinstitutions, as well as contractual arrangements through which the State invitesenterprises and groups to manage publicly owned natural resources. This focuson formal laws is not intended to underestimate the importance of informal lawsand institutions, which may be embedded in longstanding custom or may evolvespontaneously in response to temporary or local circumstances. Such mecha-nisms are often more important than formal laws and can be more appropriate tolocal needs. One challenge of modern lawmaking is to find ways to accommo-date such mechanisms, where they are effective and accepted as legitimate bylocal people, within the framework of national law.

Policy enforceability is relatively neglected in writings on land and naturalresource policy. A refreshing exception is an article by Firmin-Sellers that

10 A. Seidman & R. B. Seidman, Beyond Contested Elections: The Processes of Bill Creation and Fulfillment of Democracy’s Promises to the Third World, 34 Harv. J. Legis.1, 29 (1997).

Property Rights and Environmentally Sound Management 181

examines the “political” history of property rights in customary law and formallaw systems in Ghana.11 The article argues that property rights systems must bedefended through the coercive force of ruling institutions as well as a commit-ment by the ruling institution not to abuse its power to violate the rights.

The likelihood that a law will be implemented and enforced should be athreshold consideration as it is drafted and adopted. One useful approach tolooking at legal tools may therefore be to categorize them according to who islikely to be best positioned to implement the rule in practice. From a reviewof the literature, it appears that legal arrangements related to control and useof land and resources may be classified into four broad classes: (1) those thatvest or strengthen control rights in individuals; (2) those that empower com-munities, associations, and other local groups to assert group control rights;(3) those that reserve control rights to the State or create restrictions on privateand group control rights to protect individual, group, and broader societalinterests; and (4) those that rely upon coalitions of states and internationalnongovernmental organizations to protect resources perceived to have interna-tional importance. These categories often overlap; they are neither rigid norexclusive.

Control rights asserted by individuals and groups often benefit from statesanction or the sanction of international conventions. But individuals and groupsmay also take steps to compel others to respect the control rights they are assert-ing, confident that, if necessary, the broader community or state stands willing tosupport their self-help measures.

If prevailing social mores legitimize particular property rights regimes, peoplewill observe them more readily, thus lowering establishment and enforcementcosts.12 While informal laws and customs may be more important than formal lawin many places (including many economically developed countries), inconsis-tency between formal and informal law may cause individuals to perceive somerisk that the State may act to undermine informal law. Policymakers who canbring the formal law into harmony with informal law or custom, or who canincrease the legitimacy of informal law, can thereby strengthen reliance on andleverage existing adherence to informal law.

States can legitimize informal laws and customs in a variety of ways. Forexample, the State may empower customary tribunals to resolve particular typesof property disputes, or state tribunals may observe procedures that sanction consideration of customary rules and practices in resolving disputes.

11 K. Firmin-Sellers, The Politics of Property Rights, 89(4) Am. Political Sci. Rev. 867(1995).12 C. G. Stevenson, Common Property Economics: A General Theory and Land Use Appli-cations 73 (Camb. U. Press 1991).

182 Land Law Reform

But formal law may operate at the local level even in the absence of effectivelocal state institutions. There are no doubt limits to what formal laws can accom-plish in the face of local norms and customs that directly conflict with thoselaws.13 However, to the extent a formal law is consistent with the interests of alocal group that has enough knowledge and opportunity to assert application ofthe law in support of those interests the law may strengthen the group’s ability toassert its claims and may allow outsiders—such as local NGOs—to make asser-tions on behalf of the group. In this way, formal law may create expectations andinfluence the balance of power among local actors. While formal law is unlikelyto be decisive unless state institutions support its implementation, even in theabsence of such institutions formal law can influence the bargaining that occurslocally among groups and individuals.

In the case of legal tools for regulating land and resource use, factors relevantto the analysis include the scale of resource exploitation, whether the resource isexploited by individuals or groups (and the size of the groups), and whetherexploitation of the resource by one group imposes costs (externalities) on othergroups or the larger society. Table 6–1 lists modes of enforcement and

13 See Leach, supra n. 5, at 238.

Primary LevelWhere ControlRights Are Asserted

Individual

Group

State

Coalitions of states,international nongovernmentalorganizations

Associated Characteristics ofResource Use

Management of inputsimportant, small- tomedium-scale resource

Many users, limiting overuse important, large-scale resource

Costs borne by broadersociety, large-scaleresource

Costs borne by globalcommunity, large-scale or unique resource

Example ofResource Use

Sedentary farming

Use of water, forest,or rangeland

Prevention of flooding or water pollution

Preservation of rarespecies and habitats

TABLE 6–1

Control Right Assertion and Resource Use

Source: Adopted and summarized by author from various authorities.

Property Rights and Environmentally Sound Management 183

characteristics of resource use associated with each factor. These are explored inthe following sections.

6.3.1 Individual Assertion of Control Rights and Individual Management

Legal tools that vest rights of control and management in individuals are likely tobe more effective in promoting resource use in which individual management ofinputs is important. Sedentary farming is a prime example. The theory is thatfarmers who control their own land individually—in the sense that they are ableto control the use of and benefit stream from the land and prevent strangers frominterfering with their control—are more likely to conserve the land as a valuable,profit-producing resource. Building on Demsetz,14 Ellickson describes threeways in which individual management of one’s own land is more efficient thangroup management of shared land with respect to actions that are primarily localto the land, such as cultivating tomatoes:

First, self-control by one person . . . is much simpler than the multipersoncoordination entailed in intragroup monitoring. . . . Second, individual own-ership not only greatly reduces the number of instances in which peoplehave to be watched, but makes that task simpler when it must be performed.A key advantage of individual land ownership is that detecting the presenceof a trespasser is much less demanding than evaluating the conduct of a per-son who is privileged to be where he is. . . . For this reason, managers arepaid more than night watchmen. Third, . . . an individual landowner is muchmore highly motivated than a group member to police boundaries or tocarry out any other sort of monitoring function. A sole owner bears theentirety of any loss stemming from his slack oversight, whereas a groupmember bears only a fraction.15

More will be said in the last part of this chapter about the evidence to support theproposition that enhancing and protecting individual control of land can improveland conservation practices.

Examples of legal tools that substantially rely on individual assertion of control rights are (1) state privatization of farm land, (2) state titling of farm land,(3) state redistribution of farm land, and (4) state allocation of forests to individ-uals for caretaking, including allocation by contract. In each case, creation of anindividual “property right” in the resource gives the individual the legal author-ity to manage the resource and exclude others from exploiting it.

14 H. Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347 (1967).15 R. C. Ellickson, Property in Land, 102 Yale L. J. 1315, 1327–28 (1993).

184 Land Law Reform

Tools that rely upon individual assertion of control rights are likely to be lesseffective in discouraging negative externalities associated with resource use, suchas offsite flooding and the contamination of waterways by farming. However,tools that promote onsite productivity may incidentally have beneficial offsiteeffects. To the extent that legal tools ignore the needs of the landless and otherimpoverished and marginalized groups, however, they will not only be less equi-table but are also likely to be less effective over the long term, as is examined fur-ther in the last part of this chapter.

6.3.2 Group Assertion of Control Rights and Group Management

Legal tools that rely upon group assertion of control rights are likely to be moreuseful in promoting protection of common resources that are important to a num-ber of users and for which preventing overuse is more important than manage-ment of inputs; forests and rangelands often satisfy these criteria. Group management may be an especially beneficial alternative to individualizationwhen it is difficult to divide the resource (for example, a groundwater aquifer),where the society has traditionally managed the resource as common property, orwhere the resource provides a safety net to the poor.16

Group assertion of control rights and management of resources may be theonly viable alternative where state administrative capacity is not adequate at thelocal level, where groups actively resist state administration of local resources, orwhere an identified and relatively cohesive group is the primary or exclusive userof a particular resource.

Examples of legal tools that substantially rely upon group assertion of controlrights are (1) state recognition of group tenure to common resources (throughgroup titling or otherwise); (2) state empowerment of a group (community, asso-ciation, tribe) to benefit from a resource and exclude outsiders (including throughmanagement contracts); (3) state mandate of empowerment of vulnerable subgroups by mandate to share in the benefits of common resources; and(4) state-sanctioned water user associations to manage catchment area or portionto reduce negative off-site effects of farming.

While tools that rely upon group assertion of control rights may suffice to con-serve the resource, they may be relatively ineffective in discouraging negative off-site effects borne by outsiders, such as downstream water users. However, the exis-tence of the group institution may provide a useful point of contact for affectedoutsiders who wish to negotiate with group members about such offsite effects.

16 See Stevenson, supra n. 12, at 4.

Property Rights and Environmentally Sound Management 185

6.3.3 State Restrictions on Control Rights and State Management

Legal tools that provide for state restriction of individual and group controlrights or that vest control rights in the State are more likely to be necessary withrespect to environmental and other impacts that affect the interests of the soci-ety as a whole. Examples of such impacts are offsite effects of agricultural inten-sification (e.g., flooding and water pollution), effects related to resources usedby more than one group (e.g., grazing lands used by different groups of migrat-ing herders), and effects related to resources for which members of a group donot benefit sufficiently from preservation of the resource (e.g., preservation oflarge wildlife).

Examples of legal tools that substantially rely upon state restriction of privatecontrol rights or assertion of state control rights are (1) designation of protectedforests, wildlife preserves, wetlands, and other natural habitat to be monitoredand managed by the State; (2) regulation of water catchment areas used by manyindividuals and groups; (3) licensing groups to use common resources and assist-ing such groups through state enforcement of penalties against encroaching out-siders; and (4) zoning to preserve agricultural land.

6.3.4 International Instruments

According to one recent estimate, more than 1,000 international instruments eitherfocus completely on the environment or have at least one important provision con-cerned with the environment.17 A recent study by the Food and Agriculture Organization (FAO) gives a good overview of the more significant instrumentsrelated to land, environment, and protection of vulnerable populations.18 Interna-tional instruments are unlikely to address with any specificity the structure ofnational laws on land and resource use, particularly the mechanisms throughwhich states apply and enforce such laws. Nevertheless, they are likely to be use-ful in highlighting the need for participating States to assess the ecological impactsof national policies and set goals for reducing negative impacts through nationallegislation, public education, and government policy. International instrumentsmay also put pressure on national governments to enact legislation to conserveland and resources in ways that protect vulnerable populations. Table 6–2 lists representative international instruments related to land and resource use.

17 E. B. Weiss, Understanding Compliance with International Environmental Agreements:The Baker’s Dozen Myths, 32 U. Rich. L. Rev. 1555 (1999).18 Food and Agriculture Organization, Law and Sustainable Development Since Rio:Legal Trends in Agriculture and Natural Resource Management, FAO Legislative StudyNo. 73 (FAO 2002) [hereafter, FAO Legal Trends].

186 Land Law Reform

TABLE 6–2

International Instruments Related to Land and Resource Use and the Environment

Year

2002

1997

1996

1996

1994

1993

Instrument

Stockholm Convention on Persistent OrganicPollutants

Kyoto Protocol tothe UN FrameworkConvention on Climate Change

Rome Declarationof the World FoodSummit (and Planof Action)

UN Convention to Combat Desertification

UN FrameworkConvention on Climate Change

Convention on Biological Diversity

Notable Provisions

Elimination or restriction of production, use,and release of chemicals that can affect humanhealth throughout the globe, regardless of thelocation of their use

Commitment of signatories to reduce sixgreenhouse gas emissions by 2012 to 95 percent of 1990 levels; permits use of“emissions trading” through which the buyeruses the allowances to comply with greenhousegas emission reduction obligations under theprotocol and the seller uses proceeds to financedomestic emission reduction projects and carbon sequestration projects, including projects in developing countries

Importance of legal and other mechanisms toadvance land reform, recognize and protectproperty and water, enhance access toresources by women and the poor, and promoteconservation and sustainable use of naturalresources

Importance of combating desertification andmitigating effects of drought, through, interalia, conservation and regeneration of vegetation cover

Importance of stabilizing concentration ofgreenhouse gases in the atmosphere, through,inter alia, use of afforestation and improvedforest management to offset greenhouse gasemissions

Protecting customary use of biologicalresources in accordance with traditional cultural practices (art. 10(c))

Property Rights and Environmentally Sound Management 187

Year

1992

1983

1975

1971

1968

Instrument

Agenda 21 (Rio)

International Tropical TimberAgreement (revised 1997)

Convention onInternational Tradein EndangeredSpecies of WildFauna and Flora

Convention on Wetlands (RamsarConvention)

African Conventionon the Conservationof Nature and Natural Resources(revised 2003)

Notable Provisions

Need for clear title and land rights for individu-als and communities; equitable access for ruralwomen, small farmers, the rural landless, andindigenous people, and prevention of fragmen-tation (ch. 14). Importance of private propertyrights and rights of indigenous people to sustainable management of resources (ch. 10);importance of property rights of women, pas-toral groups, and nomadic groups to combatingdesertification (ch. 12); need to preserve forestsand rehabilitate degraded forests (ch. 11)

Promotion of timber trade based on sustainableexploitation of tropical forests

Promote preservation of endangered speciesthrough restrictions on trade, including trade intree species that are important for preservationof wild habitat

Preservation of wetlands of internationalimportance through designation, national monitoring, and taking wetlands into accountin national land use planning

Preservation of rare and representative ecosys-tems and species through creation of naturereserves and national parks

Source: Based on chapters on “Land” and “Forestry,” in Food and Agriculture Organization,Law and Sustainable Development Since Rio: Legal Trends in Agriculture and NaturalResource Management, FAO Legislative Study No. 73 (FAO 2002); and on text of the instruments listed.

TABLE 6–2 (Continued)

188 Land Law Reform

The Convention on Biological Diversity, which entered into force in Decem-ber 1993 and has been ratified by 158 states (and acceded to, accepted, orapproved by 29 more states), is perhaps representative. The convention obligatessignatory States to develop a national biodiversity strategy and action plan and tofile a report every four years on efforts to implement treaty commitments. Withrespect to land and natural resource use, the convention invites States to establishprotected areas and to prepare impact statements as a method of minimizingadverse impacts of development projects that may negatively affect biodiversity.States are left to decide whether they have the capability to implement these pro-visions, and whether implementation is possible or appropriate.19 Although Article 8(j) of the convention provides that practices of indigenous peoplesshould be respected and protected, this is made “subject to” the signatory State’snational legislation—a very broad qualification.20 Lack of consensus on how tomeasure performance under the convention has been identified as a major shortcoming.21

Another representative instrument is the Convention on Wetlands, signed inRamsar, Iran, in 1971 and commonly referred to as the Ramsar Convention. Asof the end of 2005 there were 141 contracting parties. Signatory States must des-ignate and protect at least one wetland, consider wetland conservation in nationalland use planning, and provide training in wetland management. Although com-prehensive data are not readily available, many States have designated multiplesites as protected wetlands, including more than six million hectares in Brazil andmore than two million hectares in China. However, countries are not strictly obligated to protect all important wetlands, as confirmed by a recent study inMexico that found thirty-four sites that qualify as wetlands of internationalimportance that were not on the protected list.22

The 1997 Kyoto Protocol to the United Nations Framework Convention onClimate Change is another example of an instrument intended to apply broadlyto protect a world resource. The instrument encourages signatory States to pur-chase emission allowances from other signatories that have satisfied protocolobligations to reduce greenhouse emissions. The selling signatory may use theproceeds to finance further reductions, through such means as restoring or

19 J. C. Kunich, Fiddling Around While the Hotspots Burn Out, 14 Geo. Intl. Envtl. L. Rev.179, 187 (2001).20 G. F. Maggio, Recognizing the Vital Role of Local Communities in International LegalInstruments for Conserving Biodiversity, 16 UCLA J. Envtl. L. & Policy 179, 211 (1997).21 P. G. le Prestre, The CBD at Ten: the Long Road to Effectiveness, 3(5) J. Intl. WildlifeL. & Policy 269, 278–279 (2002).22 A. Perez-Arteaga, K. J. Gaston & M. Kershaw, Undesignated Sites in Mexico Qualify-ing as Wetlands of International Importance, 107 Biological Conservation 47, 49 (2002).

Property Rights and Environmentally Sound Management 189

replanting natural forests to sequester greenhouse gases. As of July 2001, suchprojects may be carried out in developing countries.23 Guidelines are now beingdrafted to ensure that reforestation is done in ways that do not harm biodiversity.

6.4 Policies, Legal Tools, and Environmental Impacts

Which type of resource management will be most effective—individual, group,or state—will be influenced by many factors, including the scale of the resource;the identity and interests of resource users (including those with informal useclaims); the capacity of users and state institutions to manage the resource; thecapacity and willingness of users and the State to finance the infrastructure nec-essary to preserve the resource; and the types of externalities associated with useof the resource. The issues are often complicated because different actors use dif-ferent means to gain control of resources, their exploitation strategies can impactthe environment in different ways, and resources are used by nonhomogenousgroups even in local settings.24 Table 6–3 summarizes resource managementoptions and environmental externalities for five resource types. Boxes appeararound the more common management options, but no option is excluded.

Local environments may be dominated by a particular land use, such as farm-ing, or be characterized by a mix of different land uses. Because of space limita-tions, the following sections separately address two principal land uses—farmingand forests—although both uses may occur within the same local environment.

6.4.1 Farming

The primary focus of this section is land conservation in established rather thanin nonestablished farming systems. In the latter, which may appear when forestsand marginal lands are converted to farming, the granting of secure tenure to set-tlers who claim forest land may actually undermine conservation efforts. Therelationship between farming and loss of natural forest is further explored at theend of this section.

In established farming systems, environmental impacts of farming related toland use are appropriately considered at the level of the watershed. Landuse within watersheds is associated with six characteristic environmentaleffects: (1) soil erosion at the land-use site; (2) harmful sedimentation offsite;(3) pollution of water by chemicals; (4) changes in total water yield in streams;

23 C. E. di Leva, The Conservation of Nature and Natural Resources Through Legal andMarket-Based Instruments, 11 Rev. European Community & Intl. Envtl. L. 84, 91 (2002).24 See Leach, supra n. 5, at 229–30.

Source: Adapted and summarized by author from various authorities.

TABLE 6–3

Resource Management Options and Environmental Externalities

ManagementOption

Zoning

State management

Group management

Individual management

Externalities associatedwith improper managementof resource

Water

State water management

Water user association

Soil erosion

Siltation

Water pollution

Water mining

Arable

Zoning to preservearable land

State arable land

Group arable land

Individual arableland

Soil erosion

Siltation

Water pollution

Water mining

Climate forcing

Loss of species

Resource

Forest

Zoning to preserveforest

State-managed forest

(co-managed)

Group-managedforest

Individual forest

Soil erosion

Siltation

Flooding

Loss of species

Climate forcing

Rangeland

State-managedrangeland

(co-managed)

Group-managedrangeland

Individual rangeland

Desertification

Loss of species

Wildlife

State wildlife preserve

(co-managed)

Group wildlife preserve

Individual wildlifepreserve

Loss of species

Property Rights and Environmentally Sound Management 191

(5) changes in distribution or timing of water delivery in streams; and (6) changesin the groundwater table.25 To this we should add a seventh effect: reduced biodi-versity, both onsite and offsite, resulting, for example, from cropping decisionsor improper management of biocides. Box 6–2 describes several issues related towatershed management.

Two excellent ways to reduce soil erosion are maintenance of undisturbed for-est on sloping land and terracing of arable land to create level or near-levelground.26 Although reducing erosion benefits the individual farmer, it also hasimportant offsite benefits. Erosion control directly reduces sedimentation, whichis much less costly than attempting to remove sediment after it is deposited down-stream. Good soil and water conservation measures can also help reduce runoffof harmful agrochemicals into surface waters (though such measures mayincrease transport of chemicals to groundwater by allowing more time for waterto carry the chemicals into the soil).27

Biodiversity on cultivated land may be enhanced through decisions related tocrop selection, cropping patterns, and application of biocides. In Mexico, pro-duction of coffee in shaded polycultural farms, which are generally small-scalefarms, has been found to sustain a significantly larger variety of insects, reptiles,birds, and midsize mammals than unshaded monocrop farms.28

The following sections examine legal tools related to control of soil erosion atthe farm level and control of externalities related to erosion, water use, and lossof biodiversity.

6.4.1.1 Strengthening Possessory Rights of Individuals

Much has been written about the land conservation benefits of strengthening thepossessory land rights of individuals. Rights to land that are secure, long-term,and exclusive can promote land conservation in two principal ways: (1) by pro-viding the land possessor with assurance that he or she will benefit from invest-ments in land improvements through increased yields and increased value at timeof lease or sale of the land; and (2) by providing financial institutions with assur-ance that the purported owner has secure, verifiable rights to land and that theinstitution’s interests will be protected if it accepts the land as collateral for loans.Owners who can demonstrate the security of their land rights may thus be

25 L. S. Hamilton & A. J. Pearce, Biophysical Aspects in Watershed Management, in Watershed Resources Management: Studies from Asia and the Pacific 33 (K. W. Easter,J. A. Dixon & M. M. Hufschmidt, eds., Institute of Southeast Asian Studies 1991).26 See id. at 37.27 See id. at 41.28 P. Moguel & V. M. Toledo, Review: Biodiversity Conservation in Traditional Coffee Systems of Mexico, 13(1) Cons. Biol. 11, 13 (Feb. 1999).

192 Land Law Reform

Box 6–2. Water Use Regulation and Land Conservation

Whether farmers obtain water from rainfall, managed irrigation systems,or groundwater wells, all water sources present problems of storage andrunoff. Water runoff and gravity combine to cause soil erosion and all the harms associated with sedimentation of waterways and reservoirs.Because so many impacts of water flow are offsite, individual farmershave neither the incentive nor the capacity to prevent such harms. Effective water management therefore requires organization by eitherlocal groups or the State, or local groups and the State acting together ascomanagers of the resource. As downstream impacts of water use increaseor become more distant from water-using farmers, the incentive andcapacity of local groups to deal with the impacts diminish and the taskmust increasingly require state involvement.

Forest use, herding, and farming in upland catchment sections of thewatershed can greatly influence the amount, timing, and quality of thewaters when they reach lowland farmers and urban populations. Uplandcommunities may have very different social and economic priorities thanlowland farmers. Upland users are unlikely to bear the cost of measuresto improve the quality and quantity of downstream water that primarilybenefits downstream users.29

In lowland farming areas, water user groups can help farmers to use irrigation water more efficiently, thereby reducing water demand andrunoff. Where water is scarce, user associations help to ensure that waterdeliveries to farmers are timely and adequate, help to resolve disputesamong farmers, and provide a means for affected downstream stakehold-ers to negotiate resolution of offsite impacts.

States often find it advantageous to involve local organizations in water-shed management because (1) local organizations are often more effectivethan the State at securing compliance among water users, (2) local stake-holders are knowledgeable about local needs and may be better placed toidentify and promote adoption of appropriate technologies, and (3) localorganizations can bear much of the cost of enforcing conservation meas-ures.30 Writing about farming in Ethiopia, Admassie concludes that only

29 J. A. Ashby, E. B. Knapp & H. M. Ravnborg, Involving Local Organizations inWatershed Management, in Agriculture and the Environment: Perspectives on Sustainable Rural Development 118, 119 (E. Lutz, ed., World Bank 1998).30 See id. at 118.

Property Rights and Environmentally Sound Management 193

Box 6–2 (Continued)

local communities can manage land systems in ways that are environmen-tally sustainable since farmers are unable to control offsite impacts, theState is not equipped to manage at the local level, and there are no large pri-vate landlords who have an interest in managing large systems.31

Source: Adopted and summarized by author from various authorities.

31 Y. Admassie, Twenty Years to Nowhere: Property Rights, Land Management and Conservation in Ethiopia xxx (Red Sea Press 2000).32 D. Wachter, Farmland Degradation in Developing Countries: The Role of PropertyRights and an Assessment of Land Titling as a Policy Intervention, Land Tenure CenterPaper No. 145, 22–23 (U. Wis. 1992); T. Besley, Property Rights and Investment Incen-tives: Theory and Evidence from Ghana, 103(5) J. Political Econ. 903, 906–907 (1995).33 J. Hayes, M. Roth & L. Zepeda, Tenure Security, Investment and Productivity in GambianAgriculture: a Generalized Probit Analysis, 79(2) Am. J. Agric. Econs. 369, 377 (1997).34 See Besley, supra n. 29, at 926 and 931.35 S. C. Stonich, Dynamics of Social Processes and Environmental Destruction: A Cen-tral American Case Study, 15 Pop. & Dev. Rev. 284, 288 (1989).36 S. Gavian & M. Fafchamps, Land Tenure and Allocative Efficiency in Niger, 78(2) Am.J. Agric. Econs. 460, 467 (1996).

permitted to access formal credit markets to finance long-term improvements toland.32 Such rights can be safeguarded through a variety of mechanisms, includ-ing titling and registration of ownership, recognition of long-term use rights, andformal recognition of rights of occupation.

While the literature contains some dissent from the orthodox view that securetenure contributes to land stewardship in established farming systems, most stud-ies that have examined the relationship conclude that secure tenure does indeedenhance stewardship. For example, Hayes and colleagues found that tenure secu-rity was positively and significantly related to the propensity to make long-terminvestments in wells and fences in peri-urban farms in the Gambia.33 In a studyof land improvements in farming regions of Ghana, Besley found that moresecure land rights appeared to promote investment in the northern cocoa-producing region but did not have a strong effect in the southern vegetable-producing region.34 A study of smallholders in Honduras found that owners constructed rock walls to prevent erosion, planted trees, and followed other soilconservation measures, whereas leaseholders made no such improvements.35

There is evidence from Niger that farmers who use livestock manure as the prin-cipal technique for maintaining soil fertility are much more likely to apply scarcemanure to owned land than to borrowed land.36

194 Land Law Reform

While tenure security undoubtedly contributes to the willingness of farmers tomake long-term investments, other factors are also likely to influence thefarmer’s decision to invest in improvements. For example, farmers who invest inlong-term improvements may incur opportunity costs in the form of reduced timedevoted to on-farm production or foregone off-farm employment between crop-ping seasons, the cost of hiring labor to help with construction of improvements,and, in the case of agroforestry, the cost of reduced area for annual crops whilethe trees are not yet producing.37

Of course, not all agricultural intensification is environmentally friendly. Soilconservation may be accompanied by tree-felling to increase cropped area, andmonocropping may adversely impact biodiversity.38

6.4.1.1.1 Formal Recognition of Rights of Occupation Perhaps themost straightforward way the State can strengthen the possessory rights of indi-viduals is through legislation formally recognizing the control rights of landoccupiers. In 1997, Mozambique adopted a new land law that provides forautomatic recognition of exclusive rights to land of individual citizens whohave worked on the land “in good faith” for ten years or more.39 The rights areautomatically established without any need for the State to issue a title certifi-cate or perform registration. Although the national constitution does not permitprivate ownership per se, the rights recognized are exclusive and transferableand cannot be arbitrarily revoked by the State. The law also extends such

37 E. B. Barbier, The Farm-Level Economics of Soil Conservation: The Uplands of Java,66 Land Econs. 199, 199–202 (1990).38 See supra n. 28 and accompanying text. Farming techniques affect land conservation inat least two important ways: (1) They can directly influence the rate at which farmland isdegraded and the extent to which negative externalities are produced. (2) They help toinfluence the rate at which it is economically profitable to conserve existing farmlandrather than open up new farmland. New farming techniques—such as integrated nutrientmanagement (appropriate combination of fertilizers and manures) and reduced tillage—can maximize benefits of green revolution technologies while minimizing negative envi-ronmental impacts. See Gregory et al., supra n. 1, at 283–84. In the developing world,where farmers do not have ready access to or cannot afford expensive inputs and tech-nologies, the goal should be to combine natural processes (such as nutrient recycling, soilregeneration, and use of biopesticides) with local knowledge and skills to create farmingsystems that are more environmentally sustainable and that meet the needs of local pro-ducers and consumers. J. N. Pretty, J. I. L. Morison & R. E. Hine, Reducing Food Povertyby Increasing Agricultural Sustainability in Developing Countries, 95 Agric., Ecosystems& Envt. 217, 218–219 (2003). Because farming techniques influence the profitability ofphysical measures to conserve soil and water, they help to determine whether farmers willadopt conservation measures.39 See chapter titled “Land” in FAO Legal Trends, supra n. 18, at 233.

Property Rights and Environmentally Sound Management 195

automatic rights to communities, as will be discussed further in the context offorests.

This approach has parallels in the doctrines of “adverse possession” in com-mon law jurisprudence and “prescription” in civil law jurisprudence. Such lawsallows a land occupier to obtain ownership of land based upon actual occupationof the land continuously for some specified number of years; it must be obvious,nonpermissive (that is, without permission of others who claim ownership of theland), and “exclusive” in the sense that the occupier has not allowed others tooccupy the land. The occupier need not apply to the State for recognition ofrights; these are deemed to arise automatically by operation of law.40

Laws formalizing rights of occupation might be justified on the basis of thearguments used to support adverse possession. Adverse possession arguably:(1) discourages land owners from ignoring their land; (2) protects against thehardship caused by removing the person who has occupied the land for a longperiod; (3) encourages the productive use of land by rewarding land occupiers;and (4) over time helps to reduce the number of “latent” defects to land titles,thereby making it less risky for people to buy land.41

One potential advantage that rules to formalize rights of occupation mighthave over land titling and registration programs is that the former costs muchless to implement because there is no need for the State to investigate and adju-dicate land claims on a mass basis: Over time, disagreements are likely todiminish as occupation remains undisturbed. If the law allows land purchasersto assert the occupancy periods of those who sold them the land (a conceptknown in U.S. adverse possession jurisprudence as “tacking”), land occupierswill enjoy all essential benefits of land ownership (or rights similar to owner-ship, as in Mozambique). Of course, financial institutions may insist that theoccupier obtain documentary evidence of ownership before they will accept theland as collateral for a loan. In that respect titling and registration provide amore beneficial security of right from the standpoint of land conservation sincethe long-term occupier may not be able to access credit to invest in land conservation.

40 The automatic formalization of occupation rights should be distinguished from lawsthat allow land occupiers to apply for formal recognition of title, as provided, for exam-ple, by section 94–B of the Karnataka Land Revenue Act 1964 (as amended), whichauthorizes the deputy commissioner to ownership title to occupiers who satisfy provisionsof the section.41 D. K. Irving, Should the Law Recognize the Acquisition of Title by Adverse Possession?2 Australian Prop. L. J. 1, 6–9 (1994). The land occupier’s belief that he or she owns theland should be irrelevant so long as the occupier makes productive use of the land. SeeP. C. Olsen, Adverse Possession in Oregon: The Belief in Ownership Requirement, 23Envtl. L. 1297 (1993).

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42 D. C. Clarke, Economic Development and the Rights Hypothesis: The China Problem,51 Am. J. Comp. L. 89, 96–97 (2003).43 B. Schwarzwalder, R. L. Prosterman, J. Ye, J. Riedinger & P. Li, An Update on China’sRural Land Tenure Reforms: Analysis and Recommendations Based on a Seventeen-Province Survey, 16 Colum. J. Asian L. 143, 181 (2002).44 K. Deininger & S. Jin, The Impact of Property Rights on Households’ Investment, RiskCoping, and Policy Preferences: Evidence from China, World Bank Policy ResearchPaper 2931, 14–15 (World Bank 2002).

Another significant issue with respect to both rules formalizing occupationrights and any land tenure law that recognizes land use as creating legitimateclaims to property rights is the danger that the rule will encourage uncontrolledconversion of forests, wetlands, rangeland, and marginal lands to arable use ormight encourage invasion of private land. Any law formalizing occupation rightsshould be drafted so as to invalidate land claims that violate zoning laws and lawsprotecting forests and other nonarable land from unregulated conversion. The lawshould also provide a mechanism through which private owners can formallyobject to occupation during the statutorily prescribed period and thereby defeatthe vesting of occupation rights.

6.4.1.1.2 Formal Protection of Long-Term Use Rights Where the Statedoes not allow land ownership, long-term use rights may provide similar incen-tives for land conservation. Evidence from China suggests that state recognitionof long-term use rights to arable land gives farmers a sense of security sufficientto motivate them to invest in land. The threat of arbitrary government confisca-tion of property is much more likely to reduce economic investment than is theabsence of judicially enforced contract rights; confiscation makes practically alllong-term investments unattractive, but lack of judicial enforcement of contractrights is likely to deter only a relatively small number of contracts between totalstrangers.42 Free from the threat of confiscation or encroachment, the landownermay confidently invest in improving the land, secure in the knowledge that theinvestment can be recouped through increased productivity or increased receiptsin the case of transfer through lease or sale.

Thus Chinese farmers who individually cultivate land in villages in which theState has not periodically redistributed land among farm families report dramat-ically higher confidence in the security of their land rights compared to farmersliving in villages where the State has conducted redistribution.43 Deininger andJin found that in Chinese villages where the State had adopted a policy of notredistributing land periodically, farmers are more likely to make such investmentsin land as digging wells or ditches, planting orchards and trees, and otherwiseimproving the soil.44 They also found that an even more important predictor of

investment is the ability to transfer the land by lease and thereby recoup the valueof investments, suggesting that nontransferable rights, even if secure, will haveonly a modest impact on investment.

However, research from Ethiopia suggests that the threat of redistribution ofland does not always undermine long-term investment, particularly where farm-ers conclude that investment may actually reduce the risk that their land will bechosen for redistribution. Researchers there found that the threat of State redis-tribution of farmland does not significantly affect investment in improvements toland, and households may even invest in improvements to prevent the State fromtargeting their land for redistribution.45 Benin and Pender conclude that periodicredistribution may encourage investment by allowing new households to obtainland and use excess labor and other inputs to invest in land improvements.46 YetHolden and Yohannis predict that redistribution may fragment land to the pointthat poor households cannot afford to invest in long-term improvements.47

As with titling and registration, most positive environmental impacts associatedwith securing long-term use rights relate to onsite improvements that reduce degra-dation of land and may incidentally reduce the negative offsite impacts of farming.

6.4.1.1.3 Titling and Registration of Ownership Land titling and gov-ernment registration of rights to land are perhaps the best-known methods forstrengthening individual possessory rights to arable land. The individual ownerretains the primary interest in asserting control rights and is in the best positionto detect and deter encroachments.

It is often presumed that a primary purpose of titling and registration is to pro-tect landowners from seizure or encroachment by other citizens (including neigh-boring landowners in the case of boundary disputes). But in many settings, par-ticularly those where customary law institutions are not robust, an even moreimportant protection granted through titling and registration may be that againstarbitrary confiscation by the State, which has much greater power than other indi-viduals to displace the landowner and seize the land. Although the ultimate pro-tection against arbitrary and uncompensated expropriation of land rights is likelyto rest in the constitution or laws on land taking, the act of titling and registrationmakes it more difficult for officials to ignore obligations to observe correctprocesses and pay for taking land.

45 S. Benin & J. Pender, Impacts of Land Redistribution on Land Management and Pro-ductivity in the Ethiopian Highlands, 12 Land Degrad. & Dev. 555, 561 (2001); S. Holden& H. Yohannis, Land Redistribution, Tenure Insecurity, and Intensity of Production: AStudy of Farm Households in Southern Ethiopia, 78(4) Land Econs. 573, 586–87 (2002).46 See Benin & Pender, id. at 565.47 See Holden & Yohannis, supra n. 45, at 587.

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A second important benefit of titling and registration is to help landownersaccess formal credit markets to fund long-term improvements to land. Titling andregistration commoditize land by allowing financial institutions to accept it ascollateral for loans, including loans used to purchase the pledged land or to investin improvements to it. In the absence of registered title, financial institutions arenot likely to be interested in bearing the risks and costs associated with repos-sessing the land if the borrower defaults. This benefit distinguishes titling andregistration from other legal tools that strengthen land rights, such as state recog-nition of long-term use rights.48

Positive environmental impacts associated with titling and registration relateto onsite improvements like terracing and tree planting that reduce degradationof the land by, for example, reducing erosion and preserving soil quality. Manyonsite improvements may incidentally reduce offsite impacts—for example, ter-racing installed to keep soil from washing away can reduce downstream flooding.Other off-farm impacts, such as pollution of water due to agrochemical runoff,may either be unaffected by land-conserving improvements or actually be madeworse if land improvements lead to more intensive production. Thus, if they allowfarmers to lengthen their planning horizon and to access credit to make land-conserving improvements while simultaneously promoting more intense farmingpractices, titling and registration may have mixed environmental impacts.

Finally, titling and registration may not always benefit marginalized groups,especially where, as often occurs, the impetus for titling and registration takesplace at the insistence of the more powerful segments of local society.49 Titlingthen may result in spontaneous individualization of common-use resources,thereby depriving the poor of access to important sources of food, fodder, andfuel.

Nor do titling and registration automatically benefit women. In most cases,titling should be in the name of both husband and wife (“joint titling”) to helpstrengthen the claims of women who are abandoned or divorced; however, jointtitling is likely to be most effective where it is more or less consistent with thevalues contained in local custom.50 Before embarking on titling and registration,it is critical to examine the likely impacts on the poor, women, and other margin-alized groups.

48 Full commoditization of land requires not only titling and registration of rights but also(1) procedures and judicial institutions sufficient to give financial institutions confidencethat they can foreclose upon the forfeited collateral; and (2) local demand to purchase land(as well as the wherewithal to purchase) strong enough to make financial institutions con-fident they can sell the land after foreclosure.49 See chapter 5 in this book; see also Admassie, supra n. 37, at 29.50 See chapter 3 of this book.

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6.4.1.2 Redistributive Land Reform

As with titling, registration, and formalization of occupation rights, a commonform of redistributive land reform emphasizes the potential of the individual tocare for the land and use it productively.51 The driving goals of redistributive landreform are to provide landless and land-poor families with access to land so thatthey may improve their socioeconomic well-being through marketing crops togenerate income, improving the quality and quantity of food consumed by thehousehold, and improving the status of the household in the local community. Animportant incidental benefit of redistribution may be improved stewardship offarmed land and reduced pressure on public lands.

6.4.1.2.1 Redistributive Land Reform and Land Conservation Clas-sic redistributive land reform is intended to grant ownership or ownership-likeinterests to cultivating tenants and agricultural laborers. Significant reforms werecarried out beginning in the 1940s in Japan and South Korea, the 1950s in Taiwan, and the early 1970s in South Vietnam.52 The main impetus behind clas-sic redistributive land reform was to extend the benefits of land ownership tolandless and land-poor families, not only to enhance their physical and economichealth but also to give them a stake in preserving a politically stable rural society.

While land-to-the-tiller programs are not intended to change the scale or man-ner of farming, there is general agreement in the literature that tenant cultivatorswho become owners are almost certain to be better stewards of the land. Tenantscannot hope to reap all the benefits of any long-term investment in conserving theland, and the longer the anticipated term of return (the higher the present discountrate), the less likely it is that a tenant will undertake the improvement. A tenantwho improves the land too much may risk having the landlord retake the landeither for personal cultivation or to lease out to another tenant at a higher rent.53

Anticipated positive environmental impacts of redistribution are thereforelikely to be similar to, and perhaps even greater than, those associated with lawsthat strengthen the tenure of farmers who already claim ownership-like rights.

51 Redistributive land reform may also result in cooperative farms. Such farms are noto-riously inefficient and have survived only when prohibitions against private farming arestrictly enforced, as in Communist China and the USSR, or where there are heavy statesubsidies, nonagricultural sources of income, and extreme social enthusiasm, as in thecase of the Israeli kibbutz movement.52 In South Vietnam the noncommunist land-to-the-tiller program was implemented dur-ing 1970–1973. Concurrently, monthly communist recruitment in the South dropped by70–85 percent (although the land reform could not affect the divisions coming down fromthe North) and rice production increased by 30 percent. See Prosterman & Reidinger,supra n. 4, at 139–140.53 See id. at 37.

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One potential constraint to improved land conservation after redistribution, how-ever, is the ability of new owners to finance land improvements. Even if poorowners are interested in making long-term land conserving investments, theymay have few resources and limited access to credit. It is therefore important, par-ticularly in lands vulnerable to erosion or other forms of degradation, for the Stateto support land redistribution with programs to make credit available to newlandowners for land conservation.

In the former Soviet Union, it was long observed that agricultural workersworked much more intensively on their own village house plots and small gardenplots than they did on the large collectively managed fields and orchards. Oneestimate is that individually operated plots, which account for only 5 percent ofagricultural land, produce more than half of all agricultural output,54 indicatingthe social preference for and value of individual cultivation.

It is not clear whether smaller farms are more environmentally friendly thanlarger ones. If land is redistributed to poor families, they may not have sufficientcapital to make land-conserving improvements. Moreover, if smaller parcels aremore intensively cultivated than larger parcels, there may be at least some dangerthat the use of fertilizers and biocides per unit of farmland will increase, and withit the potential for offsite water pollution.

During the 1990s several States that emerged from the former Soviet Unionbegan redistributive land reforms that allow, but do not require, a change in thescale of farming. Moldova is an example of one of the deeper reformations in theregion. Between 1992 and 2000, the government redistributed ownership of morethan 1.5 million hectares of state-owned arable land to approximately 783,000workers and retired workers of former collective and state farms. Of that number,roughly 189,000 individuals—some 25 percent of the total—had claimed theirland before the government’s national redistribution program began in 1996.55

Because more than half the new owners were already retired at the time of theland redistribution, and because most younger owners could not afford to pur-chase or hire needed farm machinery, the great majority of new owners opted tolease land to former collective farm managers or others who had access tomachinery. Thus, a typical commercial farmer in Moldova may lease land fromas many as 500 or 1,000 owners. The scale of Moldovan farms remains extremelylarge by European standards, and farms of 500 or 1,000 hectares and larger arenot uncommon.

54 S. Osbourne & M. Trueblood, Agricultural Productivity and Efficiency in Russia andUkraine: Building on a Decade of Reform, Agricultural Economic Report No. AER813,1 (July 2002), http://www.ers.usda.gov/publications/aer813/.55 S. Dobrilovic & R. Mitchell, End of Contract Report: Project to Develop Land and RealEstate Markets in Moldova 7 (report submitted to USAID, copy on file with RDI 2000).

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It is too early to know what environmental impact these changes are having.Large commercial farmers tend to sign short-term leases, which are also favored bynew owners who are loathe to enter into long-term leases at the current low rentsdictated by the depressed market for agricultural products.There is a risk that thoseleasing large farms will have incentives to “mine” the soil under these conditions,particularly because most farmers perceive the future prospects for profitable farm-ing in the region to be uncertain. However, a significant number of new owners,including many who claimed their land before the national redistribution process,did begin farming their plots as commercial smallholders, often supplementingtheir own holdings by leasing in or even purchasing plots from other new owners.

6.4.1.2.2 The Potential Effect of Redistributive Land Reform on Forest Conservation In countries where large numbers of poor farmers arecrowded onto small amounts of farmland, population pressure can cause them tomigrate to frontier regions to clear forests or claim marginal lands for cultivation.As Thiesenhusen observes, this occurs even in countries where a large amount ofagricultural land is not used to its full productive potential, a situation he and oth-ers attribute to the practice of amassing and holding large tracts as investmentsrather than productive assets.56 Such large holdings often occupy the most fertileplains, while smallholdings are relegated to less fertile slopes. Stonich, whomThiesenhusen quotes, reports from a case study of farms in southern Honduras:

In general, the smallest landholdings and the highest population densitieswere located in the highlands, the area with the least agricultural potential.Nevertheless, farmers strove to enlarge production in these marginal areasby more intensively farming land already in cultivation . . . and by farmingpreviously uncultivated, steeper areas.57

Under such conditions, if large landholdings were divided and redistributed topoor farm families, the new farms could easily absorb large amounts of laborfrom overcrowded small landholdings. This in turn would help to reduce the pres-sure on poor families to deforest lands or bring marginal lands under production.To quote Thiesenhusen:

[W]hat happens in the settled agricultural areas of the country is probablymore important in curbing resource destruction than what is done physi-cally in the nature preserve itself. . . . In Latin America, this inquiry could

56 W. C. Thiesenhusen, Implications of the Rural Land Tenure System for the Environ-mental Debate: Three Scenarios, 26(1) J. Developing Areas 1, 17 (1991).57 See Stonich, supra n. 32, at 284.

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well lead to a renewed call for land reform. Such reform could (1) increaseproduction and employment per unit of land and discourage migration tothe frontier, with its attendant environmental damage; and (2) raiseincomes for reform participants, thereby lowering both family size andultimate pressure on scarce resources. The land reform would have to beredistributionist—land already involved in agriculture would have to beinvolved.58

6.4.1.2.3 Distribution of Small Plots Classic redistributive land reformis an attempt to provide landless and land-poor families with land sufficient tooperate a commercial farm that will supply the majority of the family income.Unless there are no recognized private claimants to the land (as in the formerUSSR), the government must either confiscate land from private owners, pur-chase it for something approaching a market price, or help families to purchaseit at market prices. Each proposition is likely to be costly in terms of social fric-tion or financing. One alternative to distribution of farm-size plots is govern-ment distribution of small house-and-garden plots to landless and land-poorrural families to supplement their income and nutrition while they continue toearn their primary income as laborers or otherwise.59

Under this approach, a one-hectare parcel that might have benefited one fam-ily under a classic land reform program might be divided into plots measuring250–330 square meters and distributed among thirty or forty families. Relativelysmall house-and-garden plots that rural families use to construct a house, plantannual and perennial food crops, and raise animals for dairy and meat productscan make a significant contribution to the nutrition, income, status, and overallwell-being of agricultural laborers and other poor rural households.60 Such plotsalso provide special benefits to women, giving them a place close to home to gar-den and perform other economic activities—such as tending animals, engagingin home industries, and so on—that can provide them with an important sourceof independent income.61 In Indonesia, research has shown that Javanese

58 See Thiesenhusen, supra n. 56, at 17.59 See generally, R. Mitchell & T. Hanstad, Small Homegarden Plots and SustainableLivelihoods for the Poor, Livelihood Support Program Working Paper (FAO March 2004),http://www.fao.org/sd/dim_pe4/pe4_040905_en.htm.60 R. Marsh, Building on Traditional Gardening to Improve Household Food Security,Food, Nutr. & Ag. No. 22, 3–4 (FAO 1998); see generally, A. Stoler, Garden Use andHousehold Economy in Rural Java, 14 Bull. Indonesian Econ. Studs. 85 (1978).61 T. Hanstad, J. Brown & R. L. Prosterman, Larger Homestead Plots as Land Reform?International Experience and Analysis from Karnataka, RDI Reports on Foreign Aid &Dev. No. 113, 7–8 (RDI 2001).

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house-and-garden plots can produce 44 percent of total food calories and 32 per-cent of total protein consumed by rural households.62

There may be several environmental benefits to small plot distribution. First, itcan reduce the need to resettle rural populations away from their home villages, thusreducing the need to convert forests and wetlands to agriculture to support creationof arable land for resettled families.This is because the government can purchase orfinance the private purchase of relatively small amounts of land near the home vil-lageusually for far less than is requiredfor resettlementprogramsthat transport fam-ilies to other parts of the country. Families are likely to be better off remaining andworking in areas with established social services and markets for their labor and pro-duction rather than remote areas where such services and markets are undeveloped.

Second, to the extent families can afford to improve their house-and-gardenplots, the plots are likely to have positive impacts on land conservation. In theIndian State of Karnataka, of families who received plots of land from the gov-ernment measuring 200–600 square meters, the majority reported increased sta-tus within the village and increased income from sale of foods and other productsproduced on the plot, and approximately half reported they had acquired credit asa result of becoming a landowner.63 In a study of Scheduled Caste and ScheduledTribe families in West Bengal, all families who were given or otherwise acquiredhouse-and-garden plots of between 100 and 300 square meters reported havingmade permanent improvements to the land, including construction of walls andwells and raising the level of the land to reduce runoff.64

Finally, distribution of small plots to landless and land-poor households is alsolikely to reduce pressure on forests and may actually enhance local plant and ani-mal biodiversity. Diversity of plant species and the layered canopy of species arethe most striking features of home gardens, with all home gardens generally con-sisting of “a herbaceous layer near the ground, a tree layer at upper levels, andintermediate layers in between.”65 Families that produce fuel wood and fodder on

62 O. Soemarwoto, The Javanese Homegarden as an Integrated Agro-Ecosystem, 7 Food& Nutr. Bull. 3 (U.N. Univ. Press 1985).63 See Hanstad et al., supra n. 61, at 22 and 24.64 T. Hanstad & S. B. Lokesh, Allocating Homestead Plots as Land Reform: Analysis FromWest Bengal, RDI Reports on Foreign Aid and Development No. 115, 18–19 (RDI 2002).65 P. K. R. Nair, An Introduction to Agroforestry 91 (Kluwer Academic Pub. 1993). Forexample, traditional Thai home gardens are reported to contain multiple and sometimesrare varieties of each planted species and represent “in-situ reservoirs for biodiversity atall levels: genetic, species, and ecological,” all of which helps to prevent pest and weedoutbreaks. See J. Gajaseni & N. Gajaseni, Ecological Rationalities of the TraditionalHomegarden System in the Chao Phraya Basin, Thailand, 46(1) Agroforestry Sys. 3, 19(1999). The high density of homegarden plants also provides habitat for insects, reptiles,birds, and small mammals. See L. Christanty, Home Gardens in Tropical Asia, with Special Reference to Indonesia in Tropical Home Gardens 9, 19 (K. Landauer & M.Brazil, eds., U.N. Univ. Press 1990).

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their own plots may opt to reduce collection of fodder and fuel wood from mar-ginal lands. Distribution of small plots may also help to reduce incentives forland-poor families to migrate and bring under cultivation ecologically sensitiveareas, such as forests and marginal lands.

6.4.1.3 Zoning to Preserve Agricultural Land

Intensified cultivation of productive agricultural land near urban areas can help toreduce the need to open new land for farming in ecologically sensitive areas. In theUnited States, where population density is relatively low and land abundant, forty-eight of the fifty states entrust local governments with decisions whether to usezoning to preserve agricultural land; state governments generally attempt toencourage preservation through tax incentives and other less restrictive policies.66

Where the amount of arable land per person is relatively low, as in China, the Stateis very concerned to limit conversion of land to nonagricultural uses.67 Suchrestrictions may help to limit the need to bring marginal lands under production.

States use a variety of tools to restrict conversion of agricultural land to non -agricultural uses in order to preserve prime agricultural land. For example, Article 21(2) of the 1991 Bulgarian Constitution provides that

Arable land shall be used for agricultural purposes only. Any change in pur-poses shall be allowed only in exceptional circumstances, when necessityhas been proven, and on terms and by a procedure established by law.68

Such prohibitions are more common in national laws than in constitutions. InTaiwan, the Agricultural Development Act (1973) requires the permission of cen-tral agricultural authorities for conversion of high-grade farmland to other uses.69

In the Netherlands, although no law strictly forbids its conversion to other uses,farmland is preserved through binding regional land use plans developed throughconsultation among national, provincial, and local governments.70 Other coun-tries achieve the same result by requiring owners to submit to cumbersomeprocesses to obtain permits for conversion, as in Slovenia.71

66 R. Alterman, The Challenge of Farmland Preservation: Lessons From a Six-NationComparison, 63(2) J. Am. Plan. Assn. 220, 222 (1997).67 G. P. Brown, Arable Land Loss in Rural China: Policy and Implementation in JiangsuProvince, 35(10) Asian Surv. 922, 922 (1995).68 Constitution of Bulgaria, art. 21(2), http://www.online.bg/law/const/const1.htm.69 Agricultural Development Act of Taiwan, arts. 10 and 12 (1973, last rev. February2003), http://eng.coa.gov.tw/law/law12a/html.70 See Alterman, supra n. 66, at 229–30.71 R. Giovarelli, Land Use Regulation, in Legal Impediments to Effective Rural Land Rela-tions in Eastern Europe and Central Asia 81, 87 (R. Prosterman & T. Hanstad, eds., WorldBank 1999).

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But such restrictions may be difficult to enforce, particularly where demandfor residential or industrial land is high. In developing countries, urbanizationoutbids all other uses for land adjacent to cities, including prime cropland.72

Between 1987 and 1991, official Chinese reports of conversions of arable landshowed that “unexplained losses”—conversions of arable land to other uses with-out explanation of the reason for conversion—accounted for 28 percent of thearable area converted, a demonstration of the laxity in enforcement and monitoring in much of rural China.73

Planners must weigh the benefits of preserving agricultural land from devel-opment against the social costs to urban dwellers who face land prices that risemuch faster than family incomes.74 Well-enforced zoning rules may prevent cre-ation of affordable housing, causing hardship to substantial numbers of less-well-off families. Where local demand for residential land makes it very difficult forthe State to enforce zoning restrictions, informal settlements may appear wherepublic infrastructure has not been built, while planners build infrastructure inareas where demand is low. In order to avoid such outcomes, zoning plans mustbe based on accurate information about local demand from the field, as well as arealistic assessment of the State’s ability to enforce the zoning restrictions.75

6.4.1.4 Policies Influencing Conversion of Forest to Agricultural Use

Most land throughout the world that is potentially available for agricultural exten-sification is presently tropical forest.76 The potential environmental impacts asso-ciated with conversion of native forest are significant. Against these must beweighed the potential social benefits of giving poor families access to land theycan own and cultivate.

The most obvious legal tool for encouraging conversion of forest is the Stategrant of ownership to those who clear forest and establish farms. States may addi-tionally provide subsidies and tax incentives to encourage settlement and conver-sion of forest. However, as the experience in Brazil demonstrates, unless the Statepolicy is carefully designed, strategies intended to benefit the long-term interestsof the poor may end up serving the short-term interests of powerful groups.77

72 E. F. Lambin et al., The Causes of Land-Use and Land-Cover Change: Moving Beyondthe Myths, 11 Global Envtl. Change 261, 265 (2001).73 See Brown, supra n. 67, at 929.74 D. E. Dowall, Benefits of Minimal Land-Use Regulations in Developing Countries,12(2) Cato J. 413, 415 (1992).75 See id. at 419–420.76 See Gregory et al., supra n. 1, at 281. 77 S. L. Barraclough & K. B. Ghimire, Agricultural Expansion and Tropical Deforesta-tion: Poverty, International Trade and Land Use 50 (Earthscan Pubs. 2000).

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Brazil contains the largest area of tropical forest located in a single country.Government-supported agricultural extensification has been identified as theprincipal driving force behind deforestation in the Amazon during the 1980s.78

Beginning in the 1940s and then accelerating after 1964, the Brazilian govern-ment embarked on a massive campaign to encourage families to leave thepoverty-stricken northeast of the country to settle in the Amazon region and con-vert native forest to farms and livestock ranches. Most clearing in the BrazilianAmazon is the result of burning forests rather than cutting trees for timber,because burning is an efficient method for clearing land and because neither thegovernment nor the ranchers will invest the time and funds necessary to cut andtransport timber.79 While the Brazilian policies did result in conversion of forests,the policies did not ultimately benefit poor farmers.

Binswanger describes six Brazilian policies that encourage deforestation, ofwhich four are described briefly here:80

1. Income tax laws allow individuals to exclude from taxation up to 90 percent,and corporations up to 80 percent, of agricultural income, which increaseddemand for agricultural land among urban investors and corporations. Poorfarmers who pay no income tax do not benefit.

2. Adverse possession rules allow an individual or corporate squatter to claimup to 3,000 hectares of federal land by using it effectively for at least a yearand a day, and effective use commonly equates to clearing trees to createpastures. In some regions only one third of the claimed area must be usedeffectively to support the claim. Since wealthy individuals and corporationshave the capital to build private roads, they are able to access far more landaway from public roads than are poor settlers.

3. Brazilian land taxes, although progressive in principle, are not progressivein practice due to a number of exceptions. Claimed forested land is taxed ata higher rate than pasture, for example, encouraging conversion of forest topasture.

4. Finally, agricultural credit policies favor those whose land is titled, givingan advantage to wealthier land claimants who can afford to navigate theprocess of obtaining titles. The prevailing highly subsidized interest ratesfor agricultural credit tend to increase the demand for agricultural land, further contributing to deforestation. Such credits also encourage mecha-nization, which reduces employment and tenancy opportunities.

78 U. Lele, V. Viana, A. Verissimo, S. Vosti, K. Perkins & S. A. Husain, Brazil—Forests inthe Balance: Challenges of Conservation with Development 19 (World Bank 2000).79 M. S. Giamo, Comment: Deforestation in Brazil: Domestic Political Imperative—Global Ecological Disaster, 18 Envtl. L. 537, 550 (1988).80 H. P. Binswanger, Brazilian Policies that Encourage Deforestation in the Amazon, 19(7)World Dev. 821 (1991).

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Thus, Brazilian policies not only contribute to deforestation on a massivescale, they have also been described as simply reproducing Brazilian socioeco-nomic inequalities on the Amazonian frontier rather than attempting to resolvethem as they arise.81 Many colonization projects were in areas with soils inap-propriate for farming and were otherwise poorly planned and monitored. In theend, much of the cleared land intended to support smallholder farming ended upeither abandoned or in the hands of large livestock ranchers.82 The loss of forestand lack of benefit to the poor together make the Brazilian experience particu-larly troubling.

6.4.2 Forests

Natural forests are critical to preserving biodiversity because they provide refugeto wild animals and plants, including rare species found only in the forest.Trees—whether natural or cropped—act as a sink for carbon and help to regulateclimate at the regional and global levels. Preserving such benefits is the centralfocus of numerous international agreements.

Forests are important for preventing soil erosion, which can cause a varietyof harms to downstream users, such as diminishing the quality and quantity ofwater available to farmers and urban populations, reducing the useful life ofreservoirs through deposit of sediment, and increasing the risk of flooding.However, the dynamics of this protection are often misunderstood. Thus,although surface erosion rates are lowest beneath undisturbed forests, leaf litterand ground cover beneath the trees protect against erosion as much as or morethan the trees themselves. Mechanical harvesting of trees causes erosion not somuch because it removes the tree cover but because poorly planned roads andtrails disturb forest soils and groundcover.83 Undisturbed (natural) forests therefore tend to provide better protection against erosion than mechanicallyharvested forests.

As compared to food-cropping systems, properly administered tree-farmingsystems can be sustainable for longer periods without application of fertilizersbecause the deeper and denser root system and perennial ground cover makethem less vulnerable to soil loss and nutrient leaching.84 This is also true of

81 B. H. Millikan, Tropical Deforestation, Land Degradation and Society: Lessons fromRondonia, Brazil, 19(1) Latin Am. Persps. 45, 68 (1992).82 See Barraclough & Ghimire, supra n. 77, at 37, 40, and 42.83 See Hamilton & Pearce, supra n. 25, at 37–38.84 K. Otsuka, Population Pressure, Land Tenure and Natural Resource Management, ADBInstitute Working Paper No. 16, 3 (ADB Inst. 2001).

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natural forest. It follows that the major threat to forest viability is excessive orpoorly planned removal of trees and other forest products—as the result of eitherharvesting or forest clearing to make way for agricultural extensification—ratherthan poor management of inputs.

In considering options for managing forests to protect them, it is important tokeep in mind how management regimes affect the poorest of the poor. The fol-lowing sections address policies aimed at managing forests to avoid externalitieslike species loss and loss of carbon sequestration capacity, provide a renewablesource of lumber and other forest products, and ensure that the poor do not bearan unfair proportion of the associated costs.85

6.4.2.1 State Management of Forest Use

Many States inherited ownership of forests from former colonial governmentsthat had nationalized the forests. State ownership of forests serves the desire ofStates to earn revenue from sale of timber and other products. Many private andpublic actors benefit from state ownership of forests, and there is a tendency forStates in many developing countries to replicate colonial forestry practices inwhich the State takes on the role of shielding the forest against increasing usagedriven by population pressures.86

One method of preserving forest resources is to establish protected forests inwhich officials restrict and closely monitor human access and harvest of forestproducts. This approach can significantly reduce land clearing, logging, hunting,grazing, and fire, even at average annual costs approaching $1 per hectare.87

Of course, the effectiveness of its forest management depends upon the State’scapacity to monitor forest product harvesting and to sanction transgressionseffectively. Where forests are located in areas with established communities,forestry officials often find it difficult to protect the forest from harvesting bylocal communities that are aware of the State’s claims and prohibitions but thatnevertheless feel justified in gathering food, fodder, and fuel from the forest tomeet their subsistence needs, as they have for generations, especially where risk

85 The most recent forest strategy document prepared by the World Bank remarks upon theneed to prioritize alleviation of the poverty confronting families who depend on forestsfor survival. World Bank, Sustaining Forests: A Development Strategy 26–28 (World Bank2004) [hereafter, Sustaining Forests].86 J. W. Bruce & L. Fortmann, Agroforestry: Tenure and Incentives, LTC Paper No. 135,16 (Land Tenure Center, U. Wisconsin–Madison 1989).87 A. G. Bruner, R. E. Gulison, R. E. Rice & Gustavo A. B. de Fonseca, Effectiveness ofParks in Protecting Tropical Biodiversity, 291 Science 125, 125 (January 5, 2001) (studyof 93 protected areas in 22 countries, with annual median funding of US$1.18 perhectare).

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of detection is low.88 Wily reports, for example, on the incapacity of Tanzaniancentral authorities to manage large forests, with the result that some forestsbecome like unowned property that belongs “to everyone and to no one.”89

Gururani recounts practices in a village of the Kumaon Himalaya of India:

To avoid the guard, women time their trips to the reserved forest carefullyand go to the forest only after they have made sure that the forest guard hasgone past their patch of the forest. The activities of the forest guard are per-sistently monitored and even men and women who do not go to the forestkeep track of the forest guard. Discussions about the forest guard constitutea significant part of conversation among Bankhali men and women.90

While Bankhali villagers regarded the forest guard for the state reserve as agovernment employee who had no real stake in or understanding of the forest andits products, they were much more inclined to accept the authority of the guardof the village (panchayat) forest. Villagers were reluctant to incur humiliation bya fellow villager or risk dismissal from panchayat membership.91

Unless the State has the capacity to enforce restrictions on forest use in settledareas, degradation of the forest will depend to a high degree on the extent towhich nearby communities depend upon forest products to meet their dailyneeds. Individuals and groups may be more efficient in monitoring use andapplying sanctions, as explored in the following sections.

Lack of state enforcement capacity has been identified as a serious threat toconservation of protected forests in Brazil.92 Where state enforcement capacity islacking, some have suggested, environmental objectives could be advanced by

88 J. I. O. Abott & R. Mace, Managing Protected Woodlands: Fuelwood Collection andLaw Enforcement in Lake Malawi National Park, 13(2) Cons. Biol. 418 (1999).89 L. A. Wily, The Legal and the Political in Modern Property Management: Re-MakingCommunal Property in Sub-Saharan Africa with Special Reference to Forest Commons inTanzania 4 (1998), http://dlc.dlib.indiana.edu/archive/00000188/00/wily.pdf. For a com-prehensive treatment of the Tanzanian case, see L. A. Wily, Community-Based LandTenure Management: Questions and Answers about Tanzania’s New Village Land Act,1999, IIED Issue paper No. 120 (Intl. Inst. for Env. & Dev. 2003), http://www.iied.org/drylands/pubs/documents/dry_ip120eng.pdf.90 S. Gururani, Regimes of Control, Strategies of Access: Politics of Forest Use in theUttarakhand Himalaya, India in Agrarian Environments: Resources, Representations,and Rule in India 170, 177–178 (A. Agrawal & K. Sivaramakrishanan, eds., Duke U. Press2000).91 See id. at 187.92 C. A. Peres & J. W. Terborgh, Amazonian Nature Reserves: An Analysis of the Defensi-bility Status of Existing Conservation Units and Design Criteria for the Future, 9(1) Cons.Biol. 34, 37 (1995).

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rezoning the Amazon forest to allow commercial tree harvesting in some areaswhile reducing the bounds of the protected area to the territory the State is pre-pared to protect in fact.93

6.4.2.2 Group Tenure and Management

Historically, forestry legislation has generally provided little scope for involvinglocal communities in the management and allocation of forest resources,94 but agrowing trend in developing countries is to involve local communities in man-agement of forests, particularly of depleted forests.95 (See Box 6–3.) It is usefulto distinguish between two conditions under which groups exercise rights toforests: (1) cases in which the State recognizes the group’s traditional right tomanage the forest, based in law or fact; and (2) cases in which the State assertsthe right to manage the forest but invites groups to help it do so. We first addressthe former case in the context of providing groups with ownership or ownership-like tenure in forest land.

6.4.2.2.1 Grant of Ownership or Ownership-like Tenure to GroupsGroups who claim rights to trees and other forest products may be particularlyefficient in guarding against unplanned harvesting of trees and forest products,especially where the group has traditionally regarded the forest as its commonproperty resource. Natural forests may provide more benefits to local users thanuniform tree stocks; replacement of natural forest with monocrop tree plantationsmay disrupt the many uses that local community members previously made of theforest, such as collecting plants for food and medicine, hunting forest animals,and forage for domestic animals.96 Whereas uniform tree stocks can be managedeffectively in smaller woodlots, maintaining multispecies forests usually requireskeeping the forest intact.97

93 A. Verissimo, C. A. Junior, S. Stone & C. Uhl, Zoning of Timber Extraction in the Brazilian Amazon, 12(1) Cons. Biol. 128 (1998).94 Food and Agriculture Organization, chapter titled “Forestry,” in FAO Legal Trends,supra n. 18, at 294, citing J. W. Bruce, Legal Bases for the Management of ForestResources as Common Property, FAO Community Forestry Note 14 (FAO 1999).95 See “Forestry,” supra n. 94, at 293–96.96 C. O. Delang, Deforestation in Northern Thailand: The Result of Hmong Farming Prac-tices or Thai Development Strategies?, 15 Soc. & Nat. Res. 483, 494 (2002).97 J. E. M. Arnold, Managing Forests as Common Property, FAO Forestry Paper 136,42–43 (FAO 1998), citing L. N. Rasmussen & R. Meinzen-Dick, Local Organizations forNatural Resource Management: Lessons from Theoretical and Empirical Literature,EPTD Discussion Paper No. 11 (IFPRI 1995).

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Box 6–3. Environmental Stewardship—a Relative Concept

In the absence of extreme economic pressure or economically attractivealternative uses for forested land, a group that has effective control of theforest is likely to manage the forest sustainably if its tenure is secureagainst encroachments from outsiders and confiscation by the State. Butthe concept of “sustainability” is elastic: it depends upon what exactly isbeing sustained. Sustainability may refer to long-term maintenance ofeconomic returns from the resource, prevention of erosion of forest soil,preservation of the quality of products emerging from the forest, preserva-tion of a minimum stock of trees as a carbon sink, or preservation of natu-ral forest as habitat for wild animals and plants. The World Bank’s 1991forest-planning strategy contained three definitions for sustainability offorests:

• The continuous flow of timber products and services, some of which may be essential for sustaining the livelihood of indigenous people

• The continued existence of the current ecosystem• The long-term viability of alternative uses that might replace the origi-

nal ecosystem.98

Thus, the interests of the group in sustainably managing the forest as aneconomic resource may not coincide with the aims of the State—or theinternational community—in preserving the forest as an environmentalresource. For example, groups managing forests in the upper watershedcannot be expected to bear the costs of management decisions that benefitonly downstream users. In many cases, the State must find ways to pro-vide incentives to groups to manage forests in ways that satisfy environ-mental goals of the broader society. Outsiders—such as downstreamwater users—may find it useful to negotiate incentives to groups to adoptmanagement practices that help to preserve the downstream benefits ofhealthy forests. The alternative to providing incentives to the group formanaging the forest so as to satisfy broader environmental goals is for theState to mandate conservation practices. High enforcement costs, particu-larly in remote areas, may make this alternative unaffordable in somecountries.

Source: Adopted and summarized by the author from various authorities.

98 See Lele, supra n. 78, at 57, summarizing A World Bank Policy Paper: The Forest Sector(World Bank 1991). See also Sustaining Forests, supra n. 85, at 26–28.

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Even where the State might prefer to manage forests directly, group manage-ment may be a better alternative for preserving threatened forests when stateadministrative capacity is not adequate at the local level, or where groups whohave de facto control of the resource actively resist state administration.

Where an indigenous group has historically managed the forest, the forest isof modest size and its area sufficiently delimited, and management is exercisedby an indigenous institution, the State may simply recognize the indigenous prop-erty rights of the community.99 Conversely, the State may be unwilling to recog-nize such rights where the forest is very large, its area is not clearly delimited,other groups claim rights to parts of the same forest, or there is no indigenousinstitution that the State can recognize.

6.4.2.2.2 Legal Bases for Group Recognition One fundamental require-ment for implementing group tenure is legislation that provides a process bywhich the State can legally recognize the membership and management structureof the group, including indigenous groups. It is not necessary for the State torecord the informal laws of the group; this may in fact be counterproductive sinceit may unnaturally constrain the ability of the group to modify its informal lawsin response to changing circumstances. But it is necessary for the State to iden-tify and acknowledge the membership of the group as well as the group’s inter-nal method for making decisions about management of land and naturalresources. This is important so that the State and other outsiders know that individuals who purport to represent the group have the legitimate support of thegroup.

Tanzania provides an interesting model for granting local control rights overforests. A stated objective of the 1998 National Forest Policy is the promotion ofcommunity-owned and managed forests. This objective is greatly aided by thefact that Tanzanian villages are legally recognized and registered entities com-prised of a list of households living within a delimited area.100 A village may ownland and may sue and be sued in its corporate capacity. An elected village coun-cil is authorized by law to provide social infrastructure (roads, water, education,health, and other local needs) and its governance functions become more impor-tant during periods when the national government has been unable to meet suchneeds.101 Villages have therefore begun managing nearly a third of the country’s580 forest reserves as “local authority forest reserves.”102

99 See Bruce, supra n. 94, at 51.100 See Wily, supra n. 89, at 11.101 See id. at 15.102 See id. at 8.

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The 1997 Mozambique Land Law, mentioned earlier in the context of indi-vidual land claims, also allows groups to assert claims to land. Under the law,communities may define themselves, delimit the boundaries of the resource, andnegotiate with neighboring communities about shared resources. In Uganda, theLand Act, 1998, requires a group that seeks customary tenure to create a com-munal land association, select officers to act as the “body corporate,” and applyto the State to obtain certification as a group. Article 20(3) of the Ugandan lawauthorizes the officers to hold title to the land on behalf of the community but dis-allows any transaction with the land without majority approval:

Where land is held on a certificate of customary ownership or a freehold orleasehold title by the Managing Committee on behalf of an Association, notransactions of any kind in respect of the land or any part of the land shallbe entered into or undertaken or concluded by the Managing Committeeunless and until a majority convened for the purpose to approve the specifictransactions which are the subject of the meeting and any transaction whichis concluded which does not comply with this subsection shall be null andvoid and shall give rise to no rights or interest in the land.103

In Papua New Guinea (PNG) the Land Groups Incorporation Act 1974 pro-vides a procedure by which customary groups can apply to the State to be recog-nized as an “incorporated land group” based upon the group’s customary struc-ture, and to receive authorization to manage traditional land according tocustomary law.104 Once incorporated, the land group may acquire, hold, or dispose of customary land and rights in customary land.105 Similarly, the NativeTitle Act 1993 (Cth) of Australia allows the Federal Court to rule on the validityof claims to traditional land made by an aboriginal group. The Aboriginal Councils and Association Act 1976 (Cth) provides a mechanism for group

103 Land Act of Uganda (Act No. 16 of 1998), sec. 20(3), http://faolex.fao.org/docs/pdf/uga19682.pdf.104 Land Groups Incorporation Act of Papua New Guinea (1974), http://www.paclii.org/pg/legis/consol_act/ lgia1974292/. For an overview of the law, see J. S. Fingleton, LegalRecognition of Indigenous Groups, FAO Legal Papers Online (1998), http://www.fao.org/Legal/prs-ol/lpo1.pdf, 11–13 (last accessed March 30, 2005). See also D. Lea, IndividualAutonomy, Group Self-Determination and the Assimilation of Indigenous Cultures, NorthAustralia Research Unit Discussion Paper No. 18/2000 (2000); H. Holzknecht, PolicyReform, Customary Tenure and Stakeholder Clashes in Papua New Guinea’s Rainforests,Rural Dev. Forestry Network Paper No. 19c (1996); P. Brown & A. Ploeg, Introduction:Change and Conflict in Papua New Guinea Land and Resource Rights, 7 AnthropologicalForum 507 (1997).105 Land Groups Incorporation Act of Papua New Guinea, art. 13 (1974) (also providingthat the incorporated group may acquire, hold, and dispose of rights to other land).

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incorporation.106 In passing on the validity of the group claim, the court may alsodecide that the aboriginal associations shall hold the land in trust and manage itin the interest of the group.107

6.4.2.2.3 Defining the Group To be effective in preserving forestresources, group tenure must be enforced by a group institution.108 The structureof the institution is likely to be related to the complexity of the group’s manage-ment goals. Although a relatively simple organizational form is needed to simplyprotect the forest against encroachment by outsiders and to control use by mem-bers of the group, the structure must be more complex if the group will attemptto produce and market products collectively.109

The institutional structure of the group may also become more complex if thegroup is internally differentiated, with user subgroups having different resourceclaims and environmental preferences.110 Although smaller groups may be morecohesive than larger groups comprised of subgroups, a larger group may be bet-ter able to defend the group against outsiders, including the State.111 If a largergroup is selected, enforcement is likely to be more effective if it provides incen-tives to subgroups that rely upon the resource, including the poor and women.

While it is possible for the State to mandate participation of women and mar-ginalized subgroups in the group institution charged with managing the forest, itis difficult for the State to ensure that such participation indeed happens. In India,rules of the Forest Department require that one of five members of the panchayat(village governing body) be a woman. Gururani reports that in three panchayats,although a woman is listed as a member, none has ever attended a meeting or participated in any decision, while males who are not panchayat members

106 The 1993 Act followed the historic ruling in Mabo v. State of Queensland, (No. 2)[1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 (3 June 1992), in which the High Courtof Australia rejected the concept of “terra nullius” (according to which Australian landwas said to be owned by no one before the British colonialists arrived) and ruled that theAboriginal natives continue to own all land to which they have maintained a traditionalrelationship since the time of British sovereignty, provided that the Crown has not grantedthe land to settlers in ownership and has not otherwise used it in ways inconsistent withthe ownership of Aboriginals. The 1993 Act was amended in 1998 after the High Courtdecision in Wik Peoples v. State of Queensland and Ors, [1996] HCA 40 (23 Dec. 1996),in which the court held that pastoral leases may coexist with native title where lease rightsare not fundamentally inconsistent with Aboriginal claims. I am grateful to Shéhan deSayrah for clarifying my understanding of these statutes and case holdings. 107 See Fingleton, supra n. 103, at 28.108 See Bruce & Fortmann, supra n. 86, at 13.109 See Bruce, supra n. 94, at 51.110 See Leach, supra n. 5, at 230.111 See Arnold, supra n. 97, at 43.

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frequently attend and participate in deliberations.112 Village women say villagecustom forbids them from even speaking to male members of the panchayat.Even where outside agents are present to insist that marginalized groups partici-pate in decision making, mere participation does not result in empowerment,which must be sought outside the process.113

6.4.2.2.4 Delimiting Group Territory Where the State has not previouslyadjudicated boundaries of territories claimed by groups, disputes among groupsthat claim the same territory may be brought to a head through the group titlingprocess. Claims are likely to overlap, for example, where groups that inhabit theforest tend to use different parts of the forest during different years, or a groupclaims areas that it does not use often but that have ritual or other important sig-nificance to the group’s identity.

Uganda’s Land Act, 1998, provides that after the Land Board issues the custom-ary certificate to the communal land association, the Land Committee must demar-cate the boundaries of the certified land, taking note of any prior or coexistent rightsto the land, such as easements, leases, use rights, or other encumbrances.114 Thecommittee not only demarcates the boundaries, it is also responsible for applyingcustomary law to adjudicate any disputes that arise out of the application for certi-fication. Early on the Ugandan government initiated a targeted “sensitization program” to make landholders aware that they hold secure rights even though government offices had not yet been created to provide land certificates.115

Outsiders, including communities living near the forest, may also feel theyhave a vested interest in protecting their past uses of the forest, even if such usesmight be reasonably characterized as encroachments under the law. It is notuncommon to find competition between “indigenous” groups that claim ancientassociation with a place and local communities who claim longstanding, thoughnot ancient, attachment to the same place.116 Unreasonably high transaction costsfor negotiating the claims of various users may ultimately require authorities tolegitimize the claims of core users and deny other claims.117 The process ofresolving competing claims is intensely political and may take years.

112 See Gururani, supra n. 90, at 182.113 See Admassie, supra n. 37, at 47.114 Land Act of Uganda, arts. 7 and 8 (1998), http://www.fao.org/Legal/pub-e.htm.115 Government of Uganda, Report of the Land Act Implementation Study (1999).116 H. Rangan & M. B. Lane, Indigenous Peoples and Forest Management: ComparativeAnalysis of Institutional Approaches in Australia and India, 14 Soc. & Nat. Res. 145, 149(2001), citing B. Kingsbury, “Indigenous Peoples” in International Law: A ConstructivistApproach to the Asian Controversy, 92(3) Am. J. Intl. L. 414, 425 (1998).117 See Bruce, supra n. 94, at 53.

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6.4.2.3 Cooperative Agreements for Group Management of Forests

Where the State is unwilling to grant a group ownership or ownership-like rightsto forest land, it may decide to grant usufruct rights to a group in exchange for thegroup’s managing the forest. Banana and Gombya-Ssembajjwe recount theexample of a state forest in Uganda where state administrators gave a Pygmy tribethat lived within the forest special permission to harvest forest products and residents of nearby local communities much more restricted permission to harvest.118 The resident tribe very efficiently monitored the harvesting activitiesof neighboring communities, effectively eliminating the overuse that plaguedother forests in the district. The tribe was motivated to preserve the resource forits own use, and because the tribe lived apart from and had little interaction withoutsiders, its members had little fear of reprisals.

More complex and organized versions of this concept have been applied in Indiaunder joint forest management programs. The first such arrangement arose spon-taneously from the efforts of forest-dwelling communities to protect their accessto what they traditionally regarded as communal resources.119 In the early 1980sthe government of West Bengal began working with local communities to sharemanagement of state forests, and the national government embraced joint forestmanagement beginning in 1990. The programs are consistent with a general shiftin Indian forest management policy from revenue generation to greater emphasison conservation and local community requirements for forest products.120

Although the reports vary considerably, it has been estimated that more than36,000 community groups in 22 states currently manage as much as 10.2 millionhectares of state forest lands—roughly 17 percent of total forest cover in India.121

According to program principles, a local community is granted the right to manage

118 A. Y. Banana & W. Gombya-Ssembajjwe, Successful Forest Management: The Impor-tance of Security of Tenure and Rule Enforcement in Ugandan Forests, in People andForests: Communities, Institutions and Governance 89, 95 (C. C. Gibson, M. A. McKean& E. Ostrom, eds., MIT Press 2000).119 S. R. Harrison, A. S. Ghose & J. L. Herbohn, Lessons from Social and CommunityForestry in the Tropics, with Particular Reference to India and the Philippines, inSustainable Farm Forestry in the Tropics 227, 230 (S. R. Harrison & J. L. Herbohn, eds.,Ed. Elgar Pub. 2001).120 S. Saigal, Beyond Experimentation: Emerging Issues in the Institutionalization of JointForest Management in India, 26(3) Envtl. Mgt. 269, 270 (2000).121 N. N. C. Saxena, Research Issues in Forestry in India, 55(3) Indian J. Agric. Econs.359, 366 (2000). See also Sustaining Forests, supra n. 85, at 27 (noting need to incorpo-rate into collaborative forest management programs “safeguard measures aimed at minimizing the risk of more powerful members of the community or outside commercialinterests appropriating non-timber forest products on which the poorest depend”).

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state forest lands in exchange for the grant of usufruct rights to specified forestproducts. The program has met with varied success in different villages.

Similar agreements have been used in the Philippines since 1995 under a pro-gram to provide renewable leases to community groups that agree to managestate forest reserve land.122 Pursuant to the Community-Based Forest Manage-ment Agreement, the State provides a community group with the exclusive rightto possess, cultivate, and enjoy the products of the land for twenty-five years(renewable for another twenty-five years). Because upland communities typicallydo not have sufficient capital to begin the forest enterprise, the State oftenadvances some operating costs and may maintain a minority share in the timberrights.123 The process of concluding the agreement and incorporating the community group has been criticized as overly complicated.124 It has also beencriticized as reinforcing state jurisdiction over forest areas long used by localcommunities and promoting timber production by restricting farming and otheractivities practiced by such communities.125

There is no guarantee that a group management agreement will improve therelative position of marginalized subgroups who depend upon the forest, and it islikely that an agreement will regularize existing arrangements that may beinequitable.126 In India, subgroups that are most dependent on forest products—women, members of lower castes, and the landless—are often missing entirelyfrom the local institution that implements the joint forest management agree-ment, and the poor often incur the brunt of any decision to “close” part of the for-est to collection of wood products or grazing to allow regrowth of the forest.127

Summarizing a number of recent studies of joint forest management in India,Saxena concludes in part that:

Poverty alleviation, tribal welfare and women’s empowerment have neitherbeen stressed nor monitored in government programmes, hence notachieved. Benefits to the poor beyond wages are limited.128

122 See Bruce, supra n. 94, at 40.123 See Harrison et al., supra n. 118, at 234.124 See Bruce, supra n. 94, at 40, citing O. J. Lynch & K. Talbott, Balancing Acts: Community-Based Forest Management and National Law in Asia and the Pacific (WorldResources Inst. 1995).125 J. M. Pulhin, Presentation, Community Forestry in the Philippines: Paradoxes and Perspectives in Development Practice (Eighth Biennial Conf., Intl. Assoc. Study of Common Prop., Bloomington, Indiana, May 31–June 4, 2000), http://dlc.dlibindiana.edu/documents/dir0/00/00/05/75/dlc-00000575-00/pulhinj061300.pdf.126 See Arnold, supra n. 97, at 45–46.127 See Saigal, supra n. 119, at 271–72.128 See Saxena, supra n. 120, at 369.

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Time-limited group management agreements represent a middle groundbetweenagrantofperpetualgroup tenureandstatemanagementof forest land.Theyare unlikely to be effective unless the forest and the community are in close proxim-ity, the community is highly dependent upon the forest and perceives the resource tobe scarce, and the community has an effective structure for managing resources.129

The signatory village must have the capacity and motivation to monitor the forestand prevent overuse by its own members as well as use by residents of other villages.

In addition to fashioning agreements that effectively preserve forest resources,it is critical to design them so as to ensure that they do not worsen the position ofpoorer segments of the community. Saigal offers several suggestions for this,including the following: (1) ensure that all community subgroups are representedon the local management committee; (2) require the forest management planexpressly to recognize and protect the interests of the poorest and most forest-dependent segments of the community; and (3) introduce training and orientationprograms to sensitize state forest department staff to these equity issues.130

A further approach, one the Bolivian National Park Service has implementedin a number of protected forests, is for the State to invite representatives of localcommunities to participate with park officials on management committees taskedwith defining policies for development of the area, planning activities, over -seeing plan implementation, and creating a forum for resolving disputes. The Bolivian committees are consultative bodies; state officials retain ultimateauthority to make decisions.131 Researchers report that where management committees actually meet regularly, they have tended to help central plannersunderstand the local social and economic environment, have led to greater localacceptance of the protected area, and have contributed to formation of relation-ships between the community and park service officials.132

6.4.2.4 Industrial Timber Harvesting

Even where a State recognizes that one or more customary groups own a sectionof naturally forested land, the law may not give them full control over timberresources. Hunt provides an interesting account of forest management practices in

129 See Arnold, supra n. 97, at 29, citing M. Sarin, From Conflict to Collaboration: Local Institutions in Joint Forest Management, Joint Forest Mgmt. Wkg. Paper No. 14 (SPWD1993).130 See Saigal, supra n. 119, at 277.131 D. Mason, M. Baudoin, H. Kammerbauer, L. Maria Calvo, Z. Lehm & F. Heinrich,Integrating Local People and Institutions into Protected Area Management: LessonsLearned from Bolivia 4, http://www.earthlore.ca/clients/WPC/English/grfx/sessions/PDFs/session_3/Mason.pdf. 132 See id. at 5–7.

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Papua New Guinea, where the Forestry Act 1991 and the Forestry (Amendment)Act 1993 authorize the Forestry Authority to acquire timber rights from custom-ary owners through forest management agreements.133

PNG law does not authorize customary landowners to decide whether the forest will be logged or who will log it—those decisions are taken by the ForestryAuthority, which allocates timber rights to private logging concessionaires. Con-cessionaires pay a log export tax to the central government, which shares a por-tion of the revenues with the customary landowners, sometimes in the form oflocal development initiatives that are subject to mismanagement. Though the sys-tem provides substantial revenues to concessionaires and the government,landowners receive at most only about 12 percent of the market value of exportedlogs—a highly inequitable distribution.134

PNG Forest Management Agreements are intended to achieve a “sustainedyield” so that the resource will continue to produce throughout the term of theagreement. Thus, if the forest is believed to regenerate on a forty-year cycle, theagreements provide that the concessionaire can harvest and replant one-fortiethof the concession area annually. In this way, the first harvested area will be readyto harvest again at the end of the forty-year cycle. Hunt identifies a number offactors that undermine realization of this model in practice: (1) The governmentdoes not accurately estimate timber volumes in concession areas. (2) The gov-ernment lacks capacity to enforce either harvesting limits or guidelines requiringsound harvesting methods. (3) Landowners whose lands are scheduled to be har-vested near the end of the agreement are unwilling to wait forty years beforereceiving compensation. (4) There are no adequate controls to ensure that defor-ested areas will be replanted rather than converted by landowners to other uses asopportunities arise. (5) There is a high risk that the forest will not regenerate bythe end of the planned cycle. If the concessionaire is not confident that it will

133 Hunt’s assessment is sobering:

Under current conditions it is difficult to see how industrial harvesting of timberwill ever get on to a sustainable footing in Papua New Guinea. This is true even if‘sustainable’ is defined in the narrow sense of managing forests such that profitableyields of timber can be harvested in perpetuity. If we add other dimensions of sus-tainability, such as the conservation of biological diversity and other forest goodsand services, or the development of vibrant and equitable rural economies, then thegoal of sustainable forest management in PNG seems even more remote.

C. Hunt, Executive Summary [hereafter, PNG Forestry Summary] in Production,Privatisation and Preservation in Papua New Guinea Forestry iii (C. Hunt, ed., Intl.Inst. Env. & Dev. 2002) [hereafter, PNG Forestry].

134 See id. at iv.

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have access to the same forest at the end of the regeneration cycle, it is likely toreharvest the regenerating stand prematurely.135

Hunt recommends that the State cede much greater control to customarylandowners to determine whether to allow timber to be harvested on their land orto make some alternative use of the land, such as selling conservation easementsto those willing to finance forest preservation.136 Although this would notincrease the attractiveness of forest preservation unless the financial rewardswere competitive with other uses, it would at least make preservation an option.Such proposals are likely to be resisted by PNG government bureaucrats, whoseincomes and authority are linked to maintaining a large log export industry. Iflandowners choose to allow timber harvesting, Oliver recommends that the lawallow landowners to contract directly with concessionaires, as is currently donein PNG for oil palm plantations on customary land.137 This proposal may be lessobjectionable to the bureaucrats who benefit from timber exports.

Such changes in the law would primarily address imbalances in benefit distri-bution in the current system but would probably do little to address the environ-mental consequences of harvesting. Hunt therefore recommends that, in additionto the current export tax based on the value of the exported logs, the State imposea fixed tax denominated in local currency to help offset the adverse environmen-tal impacts of logging, which are conservatively estimated to be kina 50 per cubicmeter of wood (approximately US$14 at 2001 exchange rates). Because the fixedtax would not be affected by changes in log export prices or exchange rates, itwould be more stable than taxes based on the dollar-denominated market valueof exported logs.138

6.4.2.5 Individual Ownership or Control of Trees

6.4.2.5.1 Individual Ownership or Control of Forest Where forest useor environmental goals do not depend upon maintaining a wide diversity of plantspecies, and where the forest does not provide important benefits to local poor, itmay be appropriate under certain conditions to manage the forests as individualwoodlots. This approach may be particularly appropriate in efforts to reforestwasteland.

135 C. Hunt, Industrial Harvesting: Problems and Proposals, in PNG Forestry, supran. 133, at 32–34.136 See PNG Forestry Summary, supra n. 133, at vii.137 N. Oliver, Lease, Lease-Back—An Instrument for Forestry? in PNG Forestry, supran. 133, at 59 and 60–62.138 See Hunt, supra n. 135, at 51 (calculation based on 2001 currency exchange rate,kina = US$0.28).

Property Rights and Environmentally Sound Management 221

China provides an interesting example of different approaches to local man-agement of forests. “Nonstate” forests account for an estimated 60 percent of forest area nationally in China, and in southern provinces the proportion is ashigh as 90 percent.139 In the 1980s China introduced the “Two Mountain” policy,pursuant to which the State allocated “Freehold Mountain” land to use of indi-vidual households and forested “Responsibility Mountain” land to use of localcollectives.140 Through the Freehold Mountain policy, the State granted use rightsfree of charge to households that agreed to plant trees on wasteland and degradedland. Holders of Freehold Mountain land do not become its owners but insteadenjoy the right to plant trees and harvest any trees planted. Between 1981 and1984, when such allocations ended, the State granted more than 31 millionhectares of land to households under the Freehold Mountain policy.141

Through the Responsibility Mountain policy, the State granted use rights tocollectives that agreed to manage existing forests. The collectives have the rightto plant and harvest trees on Responsibility Mountain land and use various methods to manage planting and harvesting. Although some collectives choose tomanage the forest directly, the most common practice is for the collective to con-tract with households to manage sections of the forest.142

China’s Forestry Law, which was substantially amended in 1998, provides inArticle 26 that a State or collective that owns barren hills or wasteland may signafforestation contracts with individuals and collectives to replant such areas.143

Article 27 provides that, unless the contract specifies otherwise, the planter ownsthe tree:

If the collective or private individual contracts for state-owned or collec-tively owned waste mountains and land suitable for tree planting, the treesplanted after the contract shall be owned by the contracting collective orprivate individual; if the contract has other provisions, those contractualprovisions shall be followed.144

139 D. Liu, Tenure and Management of Non-State Forests in China Since 1950: A Histori-cal Review, 6(2) Envtl. Hist. 239, 240 (2001).140 B. Schwarzwalder, P. Li, B. Zheng, Y. Su & L. Zhang, Tenure and ManagementArrangements for China’s Forestland and Grassland Resources: Fieldwork Findings andLegal and Policy Recommendations 3 (unpublished ms. 2001) (copy on file with RDI).141 See Liu, supra n. 139, at 247 (470 million mu [1 mu = 1/15 hectare] distributed), citingMinistry of Forestry, China Forestry Year, 1949–1986 479 (China Forestry Pub. 1987).142 See Liu, id. at 249.143 Forestry Law of the People’s Republic of China (1984, last revised April 1998), art. 26,http://www.novexcn.com/forestry_1998.html.144 See id. art. 27.

222 Land Law Reform

Article 7 explicitly protects the rights of individuals and collectives to resistinterference in their management of forests under contract:

The State protects the legitimate rights and interests of collectives and pri-vate individuals who have contracted for forestation; no organization andprivate individual shall encroach upon the ownership of trees and otherlegitimate rights and interests entitled according to the law to the collectivesand private individuals who have contracted for forestation.145

Such contracts, which range in length from 30 to 100 years, reportedly givehouseholds sufficient security to encourage them to invest in tree planting.146

To reduce the cost of managing fragmented plots scattered on more than one hill,households in some areas have pooled their forest use rights to share both management and proceeds, with costs and returns based on the proportionatecontribution of each household.147

6.4.2.5.2 Tree Planting on Arable Land Farmers may plant trees onexisting arable land for several reasons: to diversify crops (including by timberproduction), to protect against soil loss from wind or water, and to strengthentenure claims to the land. Farmers may also plant trees on unused lands (includ-ing degraded lands and wastelands) to produce food crops and timber, oftenunder the auspices of a government program of land reclamation. With properplanning, such programs can make land more productive and create environmen-tal benefits. In China, reforestation has been used to reduce surface waterlogging,making land beneath the trees available for interplanting annual crops.148

The species of tree and the product to be produced will determine how longthe farmer must wait before harvesting the products of a tree (apples, for example) or cutting it for timber. Where the farmer plants the tree, on land towhich the farmer has secure tenure, the waiting period represents one of thefarmer’s opportunity costs because the area planted with trees cannot produceother crops during this period. The farmer bears other costs, including the costof the seedling and the time invested in planting and caring for the tree, all ofwhich might otherwise be spent on cultivating crops or earning wages from off-farm employment. Tree planting, therefore, much more resembles a permanentimprovement like digging a well than it resembles planting of annual crops.149

145 See id. art. 7.146 See Liu, supra n. 139, at 250.147 See id. at 252–53.148 See Hamilton & Pearce, supra n. 25, at 47.149 See Bruce & Fortmann, supra n. 86, at 3.

Property Rights and Environmentally Sound Management 223

Farmers who plant trees on unused lands and wastelands bear similar costs,except that the waiting period does not represent an opportunity cost because theyare not using owned land. However, if the planted area is not close to the farmer’sresidence, as is likely in the case of wastelands, the farmer must presumably incuradditional costs in terms of time spent traveling to the site and guarding the trees(or the cost of hiring others to do so).

We would expect to find that property rights to the land and the trees are likelyto affect a farmer’s propensity to plant trees. If state law or local custom deniesfarmers the right to cut and sell the wood of trees, the trees are much less valu-able to the farmer. Yin and Newman studied the effects of different governmentpolicies pursued in northern and southern provinces of China during the period1978–1988.150 They found that farmers in northern provinces had increased treeplanting dramatically in response to stable government policies that respectedindividual tenure over planted trees, did not require harvesting permits, andapplied low taxes; farmers in southern provinces were unwilling to plant trees inthe face of fluctuating government policies on the security of individual tenureover trees, requirements for harvesting permits, and requirements that farmerssell timber to state companies at half the market price. Even a small possibility oflosing the land makes investment in long-lived assets unattractive compared withless sustainable activities that yield more immediate gains.151 Other studies havefound that farmers are more likely to plant trees on land they own while plantingannual crops on land they lease.152 While the propensity to plant trees of any kindis likely to be affected by the stability of long-term tenure rights, this may beespecially true with regard to trees that are planted primarily for their value astimber.

The situation is more complicated where law or custom gives the tree plantera claim to the land on which the tree is planted. Where trees are used to strengthenland tenure claims, farmers may be willing to bear relatively high costs in orderto acquire the tenure-strengthening benefits of tree planting. However, otherswho claim tenure rights to the same land may seek to prevent the farmer fromplanting trees on the contested land.153

By giving farmers full rights to cut trees planted on government-owned waste-lands, the government would encourage efforts to make the land productive,which would presumably reduce the pressure to harvest natural forests. On the

150 R. Yin & D. H. Newman, Impacts of Rural Reform: The Case of the Chinese Forest Sector, 2 Envt. & Dev. Econs. 291, 294–95 (1997).151 R. Mendelsohn, Property Rights and Tropical Deforestation, 46 Oxf. Econ. Papers,New Series 750, 753 (1994).152 See Bruce & Fortmann, supra n. 86, at 3.153 See id. at 6.

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other hand, in some settings land that the government regards as “wasteland” maysupply important resources to the poor, who may gather fodder, fuel, and foodfrom it.154 Reforestation of such land may therefore deprive marginalized fami-lies of access to critical resources. Laws that allow farmers to plant trees onunused lands and wastelands should include a requirement that before authoriz-ing tree planting on such lands, the State first assess the extent to which familiescurrently rely upon the land to supply fodder and other household goods.

Moreover, to enhance the environmental benefits of tree-planting on unusedlands and wastelands in areas that are at risk of soil erosion, the law should spec-ify tree-farming procedures that will protect the land against erosion. In particu-lar, in any area where land slope exposes the soil to risk of erosion, lawmakersshould consider requiring land users to plant groundcover. Lawmakers shouldalso prescribe the method of harvest to ensure that construction of roads and trailsdoes not disturb groundcover. Although a discussion of forest-harvesting tech-niques is beyond the scope of this chapter, where there is not enough administra-tive capacity to closely regulate harvesting, policymakers mighty consider for-bidding clear cutting and requiring farmers to harvest mature trees from one siteover several years.

Different considerations arise for tree tenure and land tenure policy near nat-ural forests. A law that allows farmers to cut trees they plant and to claim landbeneath such trees may actually encourage farmers to cut trees in natural forestand replace the natural forest with tree crops. Evidence from Sumatra and Ghanaindicates that where access to natural forest is unrestricted and the law grantsstrong individual rights on cleared land, clearing of forests will be excessive.155 Itis important that laws and policies designed to encourage tree planting notincrease pressure for removal of natural forest.

6.5 Conclusion

Increased farming on existing farmland or land newly opened to farming maygive rise to a number of negative environmental impacts, most of which relate tosoil erosion and changes in the quality and quantity of water within watershedsbut which may also involve loss of biodiversity. Deforestation—whether causedby opening of new farmland and rangeland or by increased demand for timber—may cause numerous negative impacts, including loss of wild animal and plantspecies and reduction of global capacity to sequester greenhouse gases.

154 T. Beck & M. G. Ghosh, Common Property Resources and the Poor: Findings fromWest Bengal, Econ. & Political Wkly. 147, 147–148 (January 15, 2000).155 See Otsuka, supra n. 84, at 4, citing T. L. Anderson & P. J. Hill, The Race for PropertyRights, 16 J. Econ. Hist. 16 (1973).

Property Rights and Environmentally Sound Management 225

Land and resource management policies implemented through laws and regu-lations can play an important role in preserving and facilitating sustainable use offorests, arable lands, and rangelands. Of equal importance, they can influence theextent to which the poor and marginalized groups share in the benefits of landuse. This is especially true in developing countries, where most families earntheir living from agriculture and where a sizable proportion of families are economically vulnerable.

The likelihood that a legal rule will be implemented and enforced should be athreshold consideration in the design and adoption of laws intended to conserveland and other natural resources. Laws and other legal tools may be enforcedthrough a variety of means and actors. In evaluating the appropriateness of legaltools regulating land and resource use, policymakers should consider the scale ofresource exploitation, whether the resource is exploited by individuals or groups(and the size of the group), and whether exploitation of the resource by one groupposes costs on other groups or the larger society. State political and administra-tive capacity to implement desired policies is likely to influence greatly theoptions that are available to the State for managing resource use.

Legal tools that substantially rely upon individual assertion of control rightsare more likely to be effective in promoting resource use in which individualmanagement of inputs plays an important role, such as sedentary farming. Toolsthat may usefully encourage land conservation include those that strengthen landtenure, such as rules that provide secure rights to land users based upon long-termoccupation of land or that provide for certification and registration of land rights.Certification and registration, though much more expensive, provide a basis formaking formal credit available to landowners.

Redistribution of existing farmland to landless and land-poor farm familiesholds some promise not only for enhancing the welfare of poor households andallowing them to become more productive but also for reducing pressures thatcause poor families to deforest lands and bring marginal lands under production.Distribution of small plots (up to 300 square meters) to village households in situmay be an especially affordable alternative where population pressure is high andthe government can afford to purchase or finance the private purchase of onlysmall amounts of land for redistribution. Individual tenure, including long-termuse rights to state wastelands, may also give households enough security toencourage tree planting.

Legal tools that rely upon group assertion of control rights are more likely tobe useful in promoting protection of common resources, such as forests, that areimportant to a number of users and for which preventing overuse is more impor-tant than management of inputs. Even where the State might prefer to manageforests directly, group management of forests may be an attractive alternativewhere state administrative capacity is inadequate at the local level or where

226 Land Law Reform

groups that have de facto control of the resource actively resist its administrationby the State.

One fundamental requirement for implementing group tenure is adoption oflegislation that provides a process by which the State can legally recognize themembership and management structure of groups, including indigenous groups.Care must be taken to ensure that group management of common resources,whether through recognition of group tenure or through management contractssimilar to the joint forest management agreements used in India, does not under-mine access to the resources by subgroups that are most dependent on forestproducts, which often include women, members of lower castes, and the landless.

It is also important to keep in mind that the interests of the group in sustain-ably managing the forest as an economic resource may not coincide with the aimsof the State, or the international community, in preserving the forest as an envi-ronmental resource. Legal tools that rely upon individual or group assertion ofcontrol rights are less likely to be effective in discouraging negative externalitiesassociated with resource use, such as loss of species, siltation of reservoirs, orpollution affecting downstream users. Legal tools that rely primarily on proactivestate reservation of control rights or restriction of private control rights maytherefore be necessary with respect to environmental and other factors that affectthe interests of the broader society.

C H A P T E R 7

Conclusion

John W. Bruce

As the development community moves further into the new millennium, land lawreform must find ways to contribute to the reduction of severe poverty, theadvancement of gender equity, and the creation of conditions for sustainableresource use. Drawing upon the many specific needs discussed in the previouschapters, let us look at the key challenges for land law reform in the developingworld.

First, proposed changes in land law must be evaluated specifically in terms oftheir impact on poverty. Property systems have welfare as well as efficiencyunderpinnings, and recognition of the welfare side calls for a clearer focus on theshort-term impacts of land law reforms on the poor. As several chapters urge, landlaw reforms must be informed by poverty-reduction strategies. Often, programsdesigned to support growth are simply relabeled as poverty-reducing. The rela-beling is true in one sense: The larger “pie” produced by economic growth is inthe long run critical to poverty reduction. But the poor need to survive and bettertheir lot in the short and intermediate run. Reforms whose designers have theireyes fixed too exclusively on the far horizon of development can easily neglectthe immediate needs and vulnerability of the poor. Growth and poverty reductionare compatible objectives, but the demands of poverty reduction need to be on thetable when land law reforms are discussed. Then the necessary balance can bestruck, in full awareness of what the landless and the land-poor will gain and lose.

Second, the gendered impacts of reforms in the law relating to land deserve farmore attention than they have received. Women and their children are among themost vulnerable members of society. The rules relating to inheritance of land anddistribution of marital property in land upon divorce directly affect whether ornot, in critical life transitions such as widowhood and divorce, women and theirchildren fall into desperate poverty. Women’s land rights are not a minority issue;they affect the well-being of half the population of the developing world. Oftenthe difficulties of cultural change are cited as obstacles to reform, and these arevery real. But even when governments today are granting new property rights, forinstance in countries in transition, or are otherwise writing on a relatively cleanslate, for instance in resettlement schemes, they often fail their women citizensbadly. Where whole new national property systems are created, as in the formerly

227

228 Land Law Reform

communist nations, men too often end up owning nearly all the land. Failure increating gender equity is often rooted in the assumption that laws that are gender-neutral on their face are sufficient. In societies where strong patriarchal valuescontinue to dominate, they are not. Proactive legal reforms are needed. Thosereforms need to be culture-sensitive, but solutions must be found.

Third, there is a need to examine more critically and systematically the legalmechanisms used for redistributive land reform and the legal consequences ofland reform. The World Bank has affirmed land reform as a potentially criticaltool in the struggle against poverty. The movement of productive assets to thepoor allows them to provide for their future. Yet little has been written about thelegal dimensions of land reform in recent years. There are new models of landreform that call for attention because they rely on quite different legal mecha-nisms than the older models. For example, land reform that relies on use of mar-ket mechanisms to acquire land for redistribution depend on the law affectingland transactions, while older compulsory acquisition models relied on the law ofeminent domain or some special variant of it.

There is also a need to reaffirm land reform as a process that can take placewithin the law. Often, land reform has been an extralegal event. Beneficiarieshave been left in an ambiguous legal position, with old rights not extinguished bylaw and new rights not affirmed in law. Society is then left with the painful taskof reestablishing respect for property rights in the wake of the reform. Becauseof the importance of land reform to the poor, these issues need to be examinedmore systematically and ways found to better protect their interests.

Fourth, an adequate poverty-reduction approach to law reform requires reex-amination of the divergence between the legal frameworks for agricultural landand for natural resources. The poor usually rely on both sets of resources, but dis-proportionately on the grazing and forest commons. Yet often government agen-cies, such as forestry departments, that manage production-cum-protectionregimes for natural resources that are critical to the poor fail to recognize com-munity-based rights in such resources or, where the resource is state-owned, togive community users clear rights. Land laws must provide a solid legal frame-work for property rights in common lands and legal personality for the commu-nities that use them. Internationally funded land administration projects com-monly fail to register such rights, focusing too exclusively on rights inagricultural and residential land—often because a clear legal framework for rec-ognizing community property rights does not exist in national law. Such projectsneed to feature this issue in their legal reform agendas; failure to deal with itresults in the anomaly of village temples, football fields, and pastures being reg-istered as state land.

Fifth, there is a need to examine the often flawed interfaces between the lawgoverning farmland and the law governing protected areas. The poor are often

Conclusion 229

disadvantaged by the inappropriate classification of land under protectionregimes. For instance, large areas of land long used for farming may be gazettedas forest land, the result of land-grabbing by forestry agencies that is unrelated topast use or the future potential of the land for forestry. This can mean that usersof that land have no way to secure tenure. There is a need to bring land in the dif-ferent use categories under a single land policy and land law umbrella so thatclassifications can be more rationally defined and perverse outcomes avoided.

Sixth, the law reform needs of landholders under customary tenure needrenewed attention. The assertion of state ownership of land in much of Africa, forexample, which is an artifact of the colonial era or a reflection of socialist aspi-rations, has often placed in legal limbo culturally grounded customary systems ofprivate property—even though those systems, de facto, govern most land use inAfrica. Today, much land law reform is concerned with formalization of “informal” land rights, and this formulation is itself risky. Customary systems arenot “informal”; rather, they represent an alternative formality, reflecting substatesocial systems of political importance. Their legal recognition by the State willoften be the first step toward the creation of solid property rights systems in land;it will set the stage for reform of those systems to increase transparency, account-ability, and gender equity.

Seventh, the law on compulsory acquisition of land by the State (the power ofeminent domain) requires new attention. While it is not often recognized, the poorsuffer disproportionately when governments appropriate land without compensa-tion for dubious public purposes. Their land is targeted because they are weak andlack influence and clear property rights. The law on compulsory acquisition hasto some extent been a blind spot in land law reform. Legal reforms can providelandholders with long-term, robust property rights but leave in place a law onpublic acquisition of land that provides excessively broad grounds for taking landwith inadequate compensation. There is a reluctance to acknowledge that in manycountries the State itself—pursuing not just public purposes but the private pur-poses of the influential—is the primary threat to land tenure security. Reformsshould narrow the grounds for takings to specified public purposes and shouldprovide fair compensation that is related to market value. The eminent domainpower is a necessary component of any system of private property but it must becarefully drawn.

In meeting these needs, our efforts at law reform should be informed by a moreadequate model of land law and its role in providing a legal basis for security oftenure. This is not a matter that concerns only the poor, but their needs will bebetter addressed if we work with an adequate model. In the past, it was sometimesassumed that land registration itself provided security of tenure. In fact, land reg-istration is simply a superior method of proof of rights. Similarly, robust propertyrights alone will not suffice. Security of tenure—the secure expectation of

230 Land Law Reform

continued enjoyment of the right—requires long-term, relatively complete prop-erty rights; an effective way to prove rights (for example, land registration); reli-able rights enforcement mechanisms (courts or mediation institutions); restraineduse of the eminent domain power; and a rule-of-law environment. No single ini-tiative will deal with all of these, but it is important not to lose sight of the fullarray of needs for establishing security of tenure. The task of meeting them all forthe poor, especially the rural poor, is challenging.

Still, there are real opportunities for the World Bank, among others, to moreadequately address these issues as it moves into more development policy lend-ing and away from investment projects. In policy lending, the potential for moreholistic approaches to land law reform and delivery of property rights is greater.Whereas a generation of land administration projects focused heavily on the legalframework for land registration itself, PRSPs and PRSCs can address the need forsecurity of tenure more holistically. Given the more liberal time frame of the pol-icy lending context, there should also be more scope for a solid law reformprocess: research-based policy-making and public consultation on law reforms,which will provide an opportunity for better understanding of the law reformneeds of the poor. This will be important for serious inquiry into the potentialimpact of proposed reforms on the poor and other disadvantaged groups. Ifinvestment projects tend to define legal reform needs too strictly in terms of proj-ect purposes, policy lending poses the opposite danger: use of generic legalreform targets grounded in theory rather than the situation and needs of the poorin the client country.

In the end, the real challenge for all of us, whether in international institutions,governments, or civil society organizations, is to focus relentlessly upon howlegal reforms impact the poor, the disadvantaged, and the environment. The chal-lenge is to refuse to be satisfied with easy assumptions and optimistic scenariosand instead to demand and provide clear and convincing evidence and analysisfor pro-poor impacts before land law reforms are enacted.

231

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Carter, M. & E. Katz, Separate Spheres and the Conjugal Contract: Understandingthe Impact of Gender-Based Development in Intrahousehold ResourceAllocation in Developing Countries: Models, Methods, and Policy (L. Hadaad, J. Hoddinott & H. Alderman, eds., Johns Hopkins U. Press for Intl. Food PolicyRes. Inst. 1992).

Chauveau, J., The Land Question in Côte d’Ivoire, Issue Paper No. 95, DrylandsProgram (Intl. Inst. Env. & Dev. 2000).

Childress, M., East Asia and Pacific Region: Regional Study on Land Admini -stration, Securitization, and Markets (World Bank 2003).

Childress, M., R. Giovarelli, R. Shimarov & K. Tilekeyev, Rapid Appraisal of LandReform in the Kyrgyz Republic 22 (USAID 2003).

Chluba, K. & E. Schmidt-Kallert, Strategy for Land Consolidation and ImprovedLand Management in Armenia (FAO 2001).

Christanty, L., Home Gardens in Tropical Asia, with Special Reference toIndonesia in Tropical Home Gardens (K. Landauer & M. Brazil, eds., U. N. U.Press 1990).

Clarke, D. C., Economic Development and the Rights Hypothesis: The ChinaProblem, 51 Am. J. Comp. L. 89 (2003).

Coldham, S., The Effect of Registration of Title upon Customary Land Rights inKenya, 22(2) J. Afr. Law 91 (1978).

Consultative Group to Assist the Poorest (CGAP), Assessing the Relative Poverty ofMicrofinance Clients (CGAP 1999).

Dale, P. F. & J. D. McLaughlin, Land Administration (Oxf. U. Press 1999).

David, R., A Civil Code for Ethiopia: Considerations on the Codification of theCivil Law in African Countries, 37 Tul. L. Rev. 189 (1963).

Davis, S. & N. Rukuba-Ngaiza, Meaningful Consultation in EnvironmentalAssessment, Social Dev. Note 39 (World Bank 1998).

de Janvry, A., G. Gordillo, J. Plateau & E. Sadoulet, eds., Access to Land, RuralPoverty and Public Action (Oxf. U. Press 2001).

———, Access to Land and Land Policy Reforms, in Access to Land, RuralPoverty, and Public Action (Alain de Janvry, Jean-Philippe Platteau, GustavoGordillo & Elisabeth Sadoulet, eds., Oxf. U. Press 2001).

de Janvry, A., The Agrarian Question and Agrarian Reformism in Latin America(Johns Hopkins U. Press 1981).

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de Soto, H., The Mystery of Capital: Why Capitalism Triumphs in the West andFails Everywhere Else (Basic Books 2002).

Deere, C. D. & M. León, Empowering Women, Land and Property Rights in LatinAmerica 3 (U. Pitt. Press 2001).

———, Who Owns the Land? Gender and Land-Titling Pro grammes in LatinAmerica, 1(3) J. Agrarian Change 440 (2001).

Deininger, K., Land Policies for Growth and Poverty Reduction, World Bank PolicyResearch Report (World Bank & Oxf. U. Press 2003).

———, Making Negotiated Land Reform Work: Initial Experience from Brazil,Colombia, and South Africa, World Bank Policy Research Working PaperNo. 2040 (World Bank 1999).

Deininger, K. & H. Binswanger, The Evolution of the World Bank’s Land Policyin Access to Land, Rural Poverty and Public Action (Alain de Janvry, Gustavo Gordillo, Jean-Philippe Plateau & Elizabeth Sadoulet (Oxf. U. Press 2001).

———, The Evolution of the World Bank’s Land Policy: Principles, Experience,and Future Changes, 14(2) World Bank Res. Observer 260 (World Bank 1999).

Deininger, K. & G. Feder, Land Institutions and Land Markets, World Bank PolicyResearch Working Paper No. 2014 (World Bank 1998).

Deininger, K. & S. Jin, The Impact of Property Rights on Households’ Investment,Risk Coping, and Policy Preferences: Evidence from China, World Bank PolicyResearch Paper 2931 (World Bank 2002).

Deininger, K., G. Feder, G. Gordillo de Anda & P. Munro-Farure, Land Policy toFacilitate Growth and Poverty Reduction, Land Reform, Land Settlement andCooperatives (2003/3 spec. ed.).

Dekker, H., The Invisible Line: Land Reform, Land Tenure Security, and LandRegistration, Ashgate Intl. Land Mgmt. Series (Ashgate Publishing Ltd. 2003).

Delang, C. O., Deforestation in Northern Thailand: The Result of Hmong FarmingPractices or Thai Development Strategies? 15 Soc. & Nat. Res. 483 (2002).

Demsetz, H., Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347 (1967).

Dept. for International Development (DFID), Better Livelihoods for Poor People:The Role of Land Reform (DFID 2003).

Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH, Land Tenurein Development Cooperation (GTZ 1998).

Development Workshop, Terra Firme: Oportunidades e Constrangimentos parauma Gestão Apropriada da Terra Urbana em Angola (Dev. Wkshp. 2003).

Dey-Abbas, J., Gender Asymmetries in Intrahousehold Resource Allocation in Sub-Saharan Africa: Some Policy Implications for Land and Labor Productivityin Intrahousehold Resource Allocation in Developing Countries: Models,

236 Selected Bibliography

Methods, and Policy (L. Hadaad, J. Hoddinott & H. Alderman, eds., JohnsHopkins U. Press for Intl. Food Policy Res. Inst. 1992).

di Leva, C. E., The Conservation of Nature and Natural Resources Through Legaland Market-Based Instruments, 11(1) Rev. European Community & Intl. Envtl.L. 84 (2002).

Diagne, A. & M. Zeller, Access to Credit and its Impact on Welfare in Malawi, Intl. Food Policy Res. Inst. Res. Rpt. (Intl. Food Policy Res. Inst. 2001).

Dobrilovic, S., Ukraine Land Titling Initiative: Monthly Report for April 2004(Chemonics Intl. 2004).

Dobrilovic, S. & R. Mitchell, Project to Develop Land and Real Estate Markets inMoldova: End of Contract Report (USAID/ Booz Allen & Hamilton 2000).

Dolzer, R., Expropriation and Nationalization, in Encyclopedia of Public InternationalLaw, vol. II (Rudolf Bernhardt, ed., 1992).

Dowall, D. E., Benefits of Minimal Land-Use Regulations in Developing Countries,12 Cato J. 413 (1992).

Ellickson, R. C., Property in Land, 102 Yale L. J. 1315 (1993).

Fafchamps, M. & A. Quisumbing, Control and Ownership of Assets Within RuralEthiopian Households, Food Consumption & Nutr. Div. Disc. Paper No. 120(Intl. Food Policy Res. Inst. 2001).

Faruqee, R. & K. Carey, Land Markets in South Asia: What Have We Learned?World Bank Policy Research Working Paper No. 1754 (World Bank 1997).

Faudez, J., Legal Reform in Developing and Transition Countries; Making HasteSlowly, in Comprehensive Legal and Judicial Development: Towards an Agendafor a Just and Equitable Society in the 21st Century (Rudolf V. Van Puymbroeck,ed., World Bank 2001).

Feder, G., Land Policies and Farm Productivity in Thailand (Johns Hopkins U.Press 1988).

Feder, G. & A. Nishio, The Benefits of Land Registration and Titling: Economicand Social Perspectives, 15(1) Land Use Policy 25 (1999).

Feder, G. & D. Feeny, Land Tenure and Property Rights: Theory and Implicationsfor Development Policy, 5(1) World Bank Econ. Rev. 135 (1991).

Feder, G., T. Onchan, Y. Chalamwong & C. Hongladarom, Land Policies and FarmProductivity in Thailand (Johns Hopkins U. Press 1988).

Fiflis, T., English Registered Conveyancing: A Study in Effective Land Transfer, 59Nw. U. L. Rev. 470 (1964).

Finan, F., E. Sadoulet & A. de Janvry, Measuring the Poverty Reduction Potential of Land in Mexico, CUDARE Working Papers, No. 983 (U. Cal., Berk. 2002).

Selected Bibliography 237

Firestone, D., Black Families Resist Mississippi Land Push, N.Y. Times A20(September 10, 2001).

Firmin-Sellers, K., The Politics of Property Rights, 89(4) Am. Political Sci. Rev.867 (1995).

Foltz, J., B. Larson & R. Lopez, Land Tenure, Investment, and AgriculturalProduction in Nicaragua, Dev. Disc. Papers: Ctr. Am. Project Series (Harv. Inst.Intl. Dev. 2000).

Fong, M., Gender Analysis in Sector Wide Assistance in Agriculture Productivity inWomen Farmers: Enhancing Rights, Recognition and Productivity, Dev. Econs. &and Policy, vol. 23 (P. Webb & K. Weinberger, eds., Peter Lang Publishing 2001).

Food and Agriculture Organization of the United Nations, Law and SustainableDevelopment Since Rio: Legal Trends in Agriculture and Natural ResourceManagement, FAO Legislative Study No. 73 (FAO 2002).

———, Good Practice Guidelines for Agricultural Leasing Arrangements, FAOLand Tenure Studies 2 (FAO 2001).

———, Women, Agriculture, and Rural Development: A Synthesis Report of theNear East Region (FAO 1995).

Freestone, D., Incorporating Sustainable Development Concerns into theDevelopment and Investment Process—the World Bank Experience inExploitation of Natural Resources in the 21st Century (M. Fitzmaurice & M. Szuniewicz, eds., Kluwer Law Intl. 2003).

Gajaseni, J. & N. Gajaseni, Ecological Rationalities of the Traditional HomegardenSystem in the Chao Phraya Basin, Thailand, 46(1) Agroforestry Sys. 3 (1999).

Galal, A. & O. Razzaz, Reforming Land and Real Estate Markets, World BankPolicy Research Working Paper No. 2616 (World Bank 2001).

Gavian, S. & M. Fafchamps, Land Tenure and Allocative Efficiency in Niger, 78(2)Am. J. Agric. Econs. 460 (1996).

Gaynor, R. & D. Bledsoe, Evaluation of the Albania Land Market Project(USAID/ARD 2000).

Giamo, M. S., Comment: Deforestation in Brazil: Domestic Political Imperative—Global Ecological Disaster, 18 Envtl. L. 537 (1988).

Gilborn, L. Z., R. Nyonyintono, R. Kabumbuli & G. Jagwe-Wadda, Making aDifference for Children Affected by AIDS: Baseline Findings from OperationsResearch in Uganda (Pop. Council Inc. 2001).

Giovarelli, R., Mortgage in the Bulgarian Agricultural Sector, Rural Dev. Inst.Report on Foreign Assistance & Dev. No. 104 (RDI 2000).

———, Land Use Regulation, in Legal Impediments to Effective Rural LandRelations in Eastern Europe and Central Asia (R. Prosterman & T. Hanstad, eds.,World Bank 1999).

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———, Women and Land in Legal Impediments to Effective Rural Land Relationsin Eastern Europe and Central Asia, World Bank Technical Paper No. 436 (R. Prosterman & T. Hanstad eds., World Bank 1999).

Giovarelli, R. & D. Bledsoe, Land Reform in Eastern Europe: Western CIS,Transcaucasis, Balkans, and EU Accession Countries, Sust. Dev. Dept.,SD dimensions (FAO 2004/2001).

Giovarelli, R., C. Aidarbekova, J. Duncan, K. Rasmussen & A. Tabyshalieva,Women’s Rights to Land in the Kyrgyz Republic (World Bank 2001).

Giovarelli, R., L. Rolfes, Jr., B. Schwarzwalder, J. Duncan & D. Bledsoe, LegalImpediments to Effective Rural Land Relations in Eastern Europe and CentralAsia, World Bank Technical Paper No. 436 (R. Prosterman & T. Hanstad, eds.,World Bank 1999).

Gopal, G., Gender-Related Legal Reform and Access to Economic Resources inEastern Africa, World Bank Discussion Paper No. 405 (World Bank 1999).

Gorton, M., Agricultural Land Reform in Moldova, INTAS Research Project,INTAS99-00753 (U. Newcastle 2000).

Government of the United Republic of Tanzania (Ministry of Lands, Housing andUrban Development), Report of the Presidential Commission of Inquiry intoLand Matters, vol. I (Scandinavian Inst. Afr. Studies 1994).

Government of Uganda, Report of the Land Act Implementation Study (1999).

Green, K. M. & A. Raphael, Third Environmental Assessment Review (FY 96–00),Environment Department (World Bank 2002).

Gregory, P. J., et al., Environmental Consequences of Alternative Practices forIntensifying Crop Production, 88 Agric., Ecosystems & Env. 279 (2002).

Gururani, S., Regimes of Control, Strategies of Access: Politics of Forest Use inthe Uttarakhand Himalaya, India in Agrarian Environments: Resources,Representations, and Rule in India (A. Agrawal & K. Sivaramakrishanan, eds.,Duke U. Press 2000).

Hamilton, L. S. &A. J. Pearce, BiophysicalAspects inWatershed Management, inWatershed Resources Management: Studies fromAsia and the Pacific 33 (K. W.Easter, J.A., Dixon & M. M. Hufschmidt, eds., Inst. SoutheastAsian Studies 1991).

Hanstad, T. & S. B. Lokesh, Allocating Homestead Plots as Land Reform:Analysis From West Bengal, RDI Reports on Foreign Aid & Dev. No. 115 (RDI 2002).

Hanstad, T., Introduction to Agricultural Land Law Reform in Legal Impediments toEffective Rural Land Relations in Eastern Europe and Central Asia: AComparative Perspective, World Bank Technical Paper No. 436 (Roy Prosterman& Tim Hanstad, eds., World Bank 1999).

———, Designing Land Registration Systems for Developing Countries, 13(3) Am.U. Intl. L. Rev. 647 (1998).

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Hanstad, T. & J. Brown, Land Reform Law and Implementation in West Bengal:Lessons and Recommendations, Rural Dev. Inst. Reports on Foreign Aid & Dev.#112 (RDI 2001).

Hanstad, T. & L. Ping, Land Reform in the People’s Republic of China: AuctioningRights to Wasteland, 19 Intl. & Comp. L. J. 545 (1997).

Hanstad, T., J. Brown & R. L. Prosterman, Larger Homestead Plots as LandReform? International Experience and Analysis From Karnataka, RDI Reportson Foreign Aid & Dev. No. 113 (RDI 2001).

Harrison, S. R., A. S. Ghose & J. L. Herbohn, Lessons from Social and CommunityForestry in the Tropics, with Particular Reference to India and the Philippines, inSustainable Farm Forestry in the Tropics (S. R. Harrison & J. L. Herbohn, eds.,Edward Elgar Pub. 2001).

Haverfield, R., Hak Ulayat and the State: Land Reform in Indonesia in Indonesia:Law and Society (Timothy Lindsey, ed., Federation Press 1999).

Hayes, J., M. Roth & L. Zepeda, Tenure Security, Investment and Productivity inGambian Agriculture: a Generalized Probit Analysis, 79(2) Am. J. Agric. Econs.369 (1997).

Hedley, K., Law and Development in Russia: A Misguided Enterprise? 90 Am. Soc,Intl. Law Proceedings 237.17 (1996).

Hilhorst, T., Women’s Land Rights: Current Developments in Sub-Saharan Africa in Evolving Land Rights, Policy and Tenure in Africa 181, 186 (C. Toulmin & J. Quan, eds., DFID/IIED/NRI 2000).

Holden, S. & H. Yohannis, Land Redistribution, Tenure Insecurity, and Intensity ofProduction: A Study of Farm Households in Southern Ethiopia, 78(4) LandEcons. 573 (2002).

Holzknecht, H., Policy Reform, Customary Tenure and Stakeholder Clashes in PapuaNew Guinea’s Rainforests, Rural Dev. Forestry Network Paper No. 19c (1996).

Inter-American Development Bank, Paraguay Cadastre and Property RegistryProgram Loan Proposal (IADB 2002).

International Fund for Agricultural Development (IFAD), Rural Poverty Report2001: The Challenge of Ending Rural Poverty (Oxf. U. Press 2001).

———, Rural Poverty Report 2000/2001 Fact Sheet: Assets and the Rural Poor(IFAD 2001).

International Land Coalition (ILC), Towards a Common Platform on Access toLand: The Catalyst to Reduce Rural Poverty and the Incentive for SustainableNatural Resource Management (ILC 2003).

Irving, D. K., Should the Law Recognize the Acquisition of Title by AdversePossession? 2 Australian Prop. L. J. 1 (1994).

Izumi, K., Liberalisation, Gender, and the Land Question in Sub-Saharan Africa inWomen, Land, and Agriculture 9 (C. Sweetman, ed., Oxfam 1999).

240 Selected Bibliography

Judd, M. & J. Dulnuan, Women’s Legal and Customary Access to Land in thePhilippines (World Bank 2001).

Kahn, M. H., Rural Poverty in Developing Countries: Issues and Policies, IMFWorking Paper WP/00/78 (Intl. Monetary Fund 2000).

Katz, E. & J. S. Chamorro, Gender, Land Rights, and the Household Economy inRural Nicaragua and Honduras (USAID BASIS/CRSP 2002).

Kevane, M. & L. C. Gray, A Woman’s Field Is Made at Night: Gendered LandRights and Norms in Burkina Faso. 5(3) Fem. Econs. 1 (1999).

Kigula, J., Land Disputes in Uganda: An Overview of the Types of Land Disputesand the Disputes Settlement Fora (Makere Inst. Soc. Research, Kampala,Uganda & Land Tenure Center, U. Wisconsin–Madison 1993).

Kingdom of Lesotho, Report of the Land Policy Review Commission (Govt. Printer2000).

Kingsbury, B., “Indigenous Peoples” in International Law: A ConstructivistApproach to the Asian Controversy, 92(3) Am. J. Intl. L. 414 (1998).

Koch, E., J. M. Massyn & A. van Niekerk, The Fate of Land Reform in SouthernAfrica: The Role of the State, the Market, and Civil Society, in Whose Land?Civil Society Perspectives on Land Reform and Rural Poverty Reduction (K. Ghimire, ed., Intl. Fund Agric. Dev. 2001).

Kumar, K., Land Use Rights and Gender Equality in Vietnam, EngenderingDevelopment No. 1 (World Bank 2002).

Kunich, J. C., Fiddling Around While the Hotspots Burn Out, 14 Geo. Intl. Envtl. L. Rev. 179 (2001).

Lambin, E. F., et al., The Causes of Land-Use and Land-Cover Change: MovingBeyond the Myths, 11 Global Envtl. Change 261 (2001).

Land Law in Comparative Perspective (Maria Elena Sanchez Jordan & AntonioGambaro, eds., Kluwer Law Intl. 2002).

Lastarria-Cornheil, S., Impact of Privatization on Gender and Property Rights inAfrica, 25(8) World Dev. 1317 (1997).

Lastarria-Cornheil, S., S. Agurto, J. Brown & S. E. Rosales, Joint Titling inNicaragua, Indonesia, and Honduras: Rapid Appraisal Synthesis (Land TenureCenter, U. Wisconsin–Madison 2003).

Lastarria-Cornhiel, S. & R. Wheeler, Gender, Ethnicity and Landed Propertyin Albania, Working Paper No. 18, Albania Series (Land Tenure Center, U. Wisconsin–Madison 1998).

Latin American Land Reforms in Theory and Practice: A Retrospective Analysis(U. Wis. Press 1992).

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le Prestre, P. G., The CBD at Ten: the Long Road to Effectiveness, 3(5) J. Intl.Wildlife L. & Policy 269 (2002).

Lea, D., Individual Autonomy, Group Self-Determination and the Assimilation of Indigenous Cultures, North Australia Research Unit Discussion Paper No. 18/2000 (2000).

Leach, M., R. Mearns & I. Scoones, Environmental Entitlements: Dynamics andInstitutions in Community-Based Natural Resource Management, 27(2) WorldDev. 225 (1999).

Ledec, G., Effects of Kenya’s Bura Irrigation Settlement Project on BiologicalDiversity and Other Conservation Concerns, 1(3) Cons. Biol. 247 (1987).

Lele, U., V. Viana, A. Verissimo, S. Vosti, K. Perkins & S. A. Husain, Brazil—Forests in the Balance: Challenges of Conservation with Development (WorldBank 2000).

Lemel, H., Land Titling: Conceptual, Empirical, and Policy Issues, in Land UsePolicy (Butterworth & Co. 1988).

Lerman, Z., Comparative Institutional Evolution: Rural Land Reform in the ECARegion, World Dev. Report Background Paper (World Bank 2001).

Lerman, Z. & A. Mirzakhanian, Private Agriculture in Armenia (Lexington Books2001).

Li, Z., The Lao People’s Democratic Republic: Preserving Women’s Rights inLand Titling, in Agricultural Investment Sourcebook, Ag. & Rural Dev. Dept.(World Bank 2004).

———, Women’s Land Rights in Rural China: A Synthesis (Working Paper for theFord Foundation 2002).

Li, Z. & J. Bruce, Gender, Landlessness and Equity in Rural China inDevelopmental Dilemmas: Land Reform and Institutional Change in China(Peter Ho, ed., Routledge 2005).

Liu, D., Tenure and Management of Non-State Forests in China Since 1950: A Historical Review, 6(2) Envtl. History 239 (2001).

Lok-Dessallien, R., Review of Poverty Concepts and Indicators, SEPED Series onPoverty Reduction (UNDP 2001).

Lopez, R. & A. Valdez, Fighting Rural Poverty in Latin America: New Evidenceand Policy, in Rural Poverty in Latin America (R. Lopez & A. Valdez, eds.,MacMillan Press, Ltd. 2000).

Lopez, R. & T. S. Thomas, Rural Poverty in Paraguay: The Determinants of FarmHousehold Income, in Rural Poverty in Latin America (R. Lopez & A. Valdez,eds., MacMillan Press, Ltd. 2000).

Lynch, O. J. & K. Talbott, Balancing Acts: Community-Based Forest Managementand National Law in Asia and the Pacific (World Resources Inst. 1995).

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Lynch, O. J. & K. Talbott, Balancing Acts: Community-Based Forestry Managementand National Law in East Asia and the Pacific (World Resources Inst. 1995).

Mackinnon, J. & R. Reinikka, Lessons from Uganda on Strategies to Fight Poverty(Centre for Study Afr. Econs. & World Bank 2000).

Maggio, G. F., Recognizing the Vital Role of Local Communities in InternationalLegal Instruments for Conserving Biodiversity, 16 UCLA J. Envtl. L. & Policy179 (1997).

Making Development Work: Legislative Reform for Institutional Transformation andGood Governance (Ann Seidman, Robert B. Seidman & Thomas W. Wilde, eds.,Kluwer Law Intl. 1999).

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McAuslan, P., Bringing the Law Back In: Essays in Land, Law and Development(Ashgate Publishing Ltd. 2003).

———, Only the Name of the Country Changes: The Diaspora of “European”Land Law in Commonwealth Africa, in Bringing the Law Back In: Essays inLand, Law and Development (Patrick McAuslan, ed., Ashgate Publishing Ltd.2003).

Mearns, R., Access to Land in Rural India: Policy Issues and Options, World BankWorking Paper No. 2123, 31 (World Bank 1999).

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Mendelsohn, R., Property Rights and Tropical Deforestation, 46 Oxf. Econ. Papers,New Series 750 (1994).

Migot-Adholla, S., et al., Security of Tenure and Land Productivity in Kenya inSearching for Land Tenure Security in Africa (John Bruce & Shem Migot-Adholla, eds., Kendall-Hunt Pub. 1993).

Migot-Adholla, S. E., S. P. Hazell, B. Blorel & F. Place, Indigenous Land Rights inSub-Saharan Africa: A Constraint on Productivity, 5.1 World Bank Econ. Rev.(World Bank 1991).

Millikan, B. H., Tropical Deforestation, Land Degradation and Society: Lessonsfrom Rondonia, Brazil, 19(1) Latin Am. Persps. 45 (1992).

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Ministry of Lands, Housing, and the Environment of Botswana, Review ofBotswana National Land Policy, Final Report 80 (January 31, 2003).

Mitchell, R. & T. Hanstad, Small Homegarden Plots and Sustainable Livelihoods for the Poor, Livelihood Support Programme Working Paper (FAO 2004).

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Moguel, P. & V. M. Toledo, Review: Biodiversity Conservation in Traditional CoffeeSystems of Mexico, 13(1) Cons. Biol. 11 (1999).

Moock, P., The Efficiency of Women as Farm Managers: Kenya, 58 Am. J. Agric.Econ. (1976).

Muhereza, F. & D. Bledsoe, Final Report—Land Sector Analysis: CommonProperty Resources Component (Govt. Uganda 2002).

Mushunje, M., Women’s Land Rights in Zimbabwe, Report of Land Tenure Ctr. 11(Land Tenure Center, U. Wisonsin-Madison 2001).

Mwebaza, R. & R. Gaynor, Final Report—Land Sector Analysis: Land Market,Land Consolidation, and Land Re-adjustment Component (Govt. Uganda 2002).

Nair, P. K. R., An Introduction to Agroforestry (Kluwer Academic Publishers 1993).

Nelson, G., W. Stoebuck & D. Whitman, The Law of Property (West Group Pub. 2002).

Ng’weno, B., On Titling Collective Property, Participation, and Natural ResourceManagement: Implementing Indigenous and Afro-Colombian Demands:A Review of Bank Experience in Colombia (2000).

Nichols, P. M., The Viability of Transplanted Law: Kazakhstani Reception of aTransplanted Foreign Investment Code, 18 U. Pa. J. Int’l Econ. L. 1235 (1997).

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Olinto, P., B. Davis & K. Deininger, Did the Poor Benefit from Land MarketLiberalization in Mexico? Panel-Data Evidence of the Impact of the EjidoReforms (World Bank 1999).

Oliver, N., Lease, Lease-Back—An Instrument for Forestry? in Production,Privatisation and Preservation in Papua New Guinea Forestry (C. Hunt, ed.,Intl. Inst. Env. & Dev. 2002).

Olsen, P. C., Adverse Possession in Oregon: The Belief in Ownership Requirement,23(4) Envtl. L. 1297 (1993).

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Otsuka, K., Population Pressure, Land Tenure and Natural Resource Management,ADB Institute Working Paper No. 16 (Asian Dev. Bank Inst. 2001).

Pagiola, S., Economic Analysis of Rural Land Administration Projects, Land Policy& Admin. Thematic Team (World Bank 1999).

Parnwell, M. J. G., Rural Poverty, Development and the Environment: The Case ofNorth-East Thailand, 15(1) J. Biogeography 199 (1988).

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Pretty, J. N., J. I. L. Morison & R. E. Hine, Reducing Food Poverty by IncreasingAgricultural Sustainability in Developing Countries, 95 Agric. Ecosystems &Envt. 217 (2003).

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Prosterman, R. L. & L. Rolfes, Jr., Review of the Legal Basis for Agricultural LandMarkets in Lithuania, Poland, and Romania, in Structural Change in theFarming Sectors in Central and Eastern Europe, World Bank Technical PaperNo. 465 (Csaba Csaki & Zvi Lerman, eds., World Bank 2000).

Prosterman, R. L. & J. M. Reidinger, Land Reform and Economic Development(Johns Hopkins U. Press 1987).

Prosterman, R., B. Schwarzwalder & J. Ye, Implementation of 30-Year Land UseRights for Farmers Under China’s 1998 Land Management Law: An Analysisand Recommendations Based on a 17 Province Survey, 9(3) Pac. Rim L. & Pol’yJ. 507 (2000).

Prosterman, R., T. Hanstad, B. Schwarzwalder & L. Ping, Legal and InstitutionalReforms in China’s Rural Land System (unpublished report, RDI 2001).

Quan, J., Land Tenure, Economic Growth and Poverty in Sub-Saharan Africa inEvolving Land Rights, Policy and Tenure in Africa (C. Toulmin & J. Quan, eds.,IIED & Natural Res. Inst. 2000).

Rangan, H. & M. B. Lane, Indigenous Peoples and Forest Management:Comparative Analysis of Institutional Approaches in Australia and India, 14 Soc.& Nat. Res. 145 (2001).

Rasmussen, L. N. & R. Meinzen-Dick, Local Organizations for Natural ResourceManagement: Lessons from Theoretical and Empirical Literature, EPTDDiscussion Paper No. 11 (IFPRI 1995).

Republic of Rwanda, Land Assessment Report 36 (Natural Res. Inst. U. Greenwich2004).

Republic of Uganda, Land Sector Strategic Plan: 2001–2011 (Repub. Uganda2002).

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Rygnestad, H., Land Administration and Gender Issues Portfolio Review (preparedfor the World Bank Group 2004).

Sadoulet, E., R. Murgai & A. de Janvry, Access to Land via Rental Markets, inAccess to Land, Rural Poverty, and Public Action (Alain de Janvry, Jean-Philippe Platteau, Gustavo Gordillo & Elisabeth Sadoulet, eds.,Oxf. U. Press 2001).

Saha, U. S. & M. Saha, Case Study. Regulating the Sharecropping System:Operation Barga in Access to Land, Rural Poverty, and Public Action(Alain de Janvry, Jean-Philippe Platteau, Gustavo Gordillo & Elisabeth Sadoulet,eds., Oxf. U. Press 2001).

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Selected Bibliography 247

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Index

n indicates note

249

Aadjudication, 29, 31–32

involuntary resettlement, 40women’s rights, 44–47

adjustment lending. See developmentpolicy lending

administrative capacity, 177, 184, 224, 225

adverse possession, 195, 206afforestation, 187, 221Africa, 42, 158

credit access, 157, 162gender bias in land

purchasing, 85individualization of communal

land, 77–78titling and registration,

149–150, 154African Convention on the

Conservation of Nature andNatural Resources, 187

Agenda 21, 187Albania, 167Amazon, the, 206–207, 210American Convention on Human

Rights, 16Angola, 150arbitration, 115, 116Armenia, 31n, 146–147, 158Asian Development Bank, 57auctions of public land, 135Australia, 213, 214n

Australian Agency for InternationalDevelopment (AusAID), 102,160n, 164

Azerbaijan, 36, 45

BBangladesh, 67, 88, 133biodiversity, 176, 191, 207

conventions and treaties, 185–188small plot distribution,

203–204, 203nBolivia, 34, 38, 218Botswana, 96–97, 96nBrazil, 49, 136

extensification, 206–207forest management, 209–210

Bretton Woods, 14bride price, 93–94, 98Bulgaria, 38, 76, 204Burkina Faso, 87, 98

CCambodia, 31–32, 31n

enacting land laws, 57–58, 58ninvoluntary resettlement, 40nland disputes, 46, 46nsporadic registration, 166titling, 42–43, 145

Canada, 118capital, access to, 109carbon sequestration,

186, 208

250 Index

CAS. See Country AssistanceStrategies

casesJader-Manalo v. Camaisa, 89Mabo v. State of Queensland

(no. 2), 214nMagaya v. Magaya, 96Sumbad v. Court of

Appeals, 89nWik Peoples v. the State of

Queensland and Ors, 214ncatchment, 184, 185ceilings for ownership, 127–128Central Asia, 36change in law, 21–22Chile, 86, 95, 109, 167China, 71n, 205

forest management, 221–222, 223women’s land rights, 71–73

climate change, 176, 176b, 179, 186, 188

co-ownership, 79, 82–84, 83n, 91–92,94, 103–104

Columbia, 52–53common ownership, 84common property, 9, 170, 184, 228Commonwealth of Independent States

(CIS) countries, 36communal land, 42, 77–79, 228community-based land reform, 48,

49–51, 84–85compensation, 18–19, 19n, 20, 20nconditionality, 21–23confiscation of land, 196–197, 211. See

also seizure of landconflict over land, 39, 46, 112, 169. See

also disputesconflict resolution, 115–116. See also

land dispute resolutionconsensual unions, 82–83conservation, 8–9, 183, 192–193,

203, 225farming, 178n, 189–191, 194nland reform, 199–201

soil, 193–196wetlands, 188

consultants. See legal consultantsconsultation. See participationcontract, 54, 71, 73, 111, 119–121,

126, 221–222customary law, 97forest management, 53–54rights, 196termination, 115tools, 21–23

control rights, 181, 225assertion and resource use, 182group forest management, 212individual and group assertion,

183–184of occupiers, 194–196, 195nState restrictions and

management, 185conventions and treaties

African Convention on theConservation of Nature andNatural Resources, 187

Agenda 21, 187American Convention on Human

Rights, 16Convention Concerning Indigenous

and Tribal Peoples inIndependent Countries, 16

Convention on Biological Diversity,186, 188

Convention on International Trade inEndangered Species of WildFauna and Flora, 187

European Convention on HumanRights and FundamentalFreedoms, 15

Inter-American Court of HumanRights, 16

International Covenant on Civil and Political Rights(ICCPR), 16

International Tropical TimberAgreement, 187

Index 251

Kyoto Protocol to the UNFramework Convention onClimate Change, 18, 186

Ramsar Convention, 187, 188Rome Declaration of the World Food

Summit, 186Stockholm Convention on Persistent

Organic Pollutants, 186UN Conference on Environment and

Development (UNCED), 16UN Convention to Combat

Desertification, 186UN Framework Convention on

Climate Change, 186Universal Declaration of Human

Rights, 15, 15nconveyancing, 49cooperative agreements, 216–218Côte d’Ivoire, 35Country Assistance Strategies (CAS),

21, 24ncourts, 29, 37, 38n, 46, 230.

See also disputesadjudication, 40titling, 39

covenants, 21–23, 23ncredit access, 7, 13, 155–158, 162

land improvements, 200titling and registration, 198

Croatia, 38cultural bias, 85–86cultural norms, 68, 74cultural taboos, 75customary land, 44customary law, 13n, 68

inheritance, 96, 97, 99–100transition to legal system, 139–141

DDCA. See Development Credit

Agreementdead capital, 14decentralization, 2, 42ndecollectivization, 71, 138–139

deforestation, 176, 178n, 224–225polices that promote, 206–207

Department for InternationalDevelopment (DFID), UnitedKingdom, 26

developing countries, 8, 14group tenure, 210land reform, 92land sales markets, 109, 124–125legal drafting, 60, 61nlegal needs, 57nmarket forces, 56resource management and farming,

178–179taxation, 134

development, 5–9, xi. See alsoeconomic growth

Development Credit Agreement(DCA), 25, 37n, 49, 50

development policy lending, 5, 11, 21,23–27, 23n, 24, 24n, 230

DFID. See Department forInternational Development,United Kingdom

discrimination. See gender biasdisplacement, 18, 41disputes, 40, 46–47, 77divorce, 43, 78, 90–93, 100

China, 73Kyrgyz Republic, 74, 77, 104titling, 80, 84, 198Zimbabwe, 96, 96n

downstream impacts, 192dowry, 93–94, 100–101

EEast Asia, 145–146Eastern Europe, 35–36, 38, 138economic growth, 12, 227

poverty alleviation, 144titling and registration,

151–160Ecuador, 82Egypt, 122

252 Index

El Salvador, 38eminent domain, 228–230environment, 8, 178–179

impacts of farming and forestry,176b, 178–179, 189, 224

size of farm, 200, 201impacts of logging, 220international instruments,

185, 186titling and registration, 198tree planting, 224

environmental stewardship, 186, 211Ethiopia, 75, 91, 97, 111European Convention on Human

Rights and FundamentalFreedoms, 15

European Union, 35nexpropriation of land, 18extensification, 175, 177, 179,

205–207externalities, 178, 190

Ffarm restructuring, 147. See also

land reformfarming technique, 194nfarms, 199, 199n, 201

conservation, 183, 189, 194nconverting forests, 205–207environmental impacts, 224impact on environment, 176, 176,

178–179size impact on environment, 200trees, 207–208

fees, 124financial resources, 60–61Food and Agriculture Organization

(FAO), 185forest management, 51–52, 54,

218–219, 224, 226by State, 208, 212group tenure, 210, 211,

216–218joint, 216–217, 226

forests, 53, 179–180, 207–210. See also timber harvesting

conservation, 201–202conversion to agricultural use,

205–207forestry impact on environment,

176, 176ownership or control of trees,

220–224sustainability, 176, 211, 225

formal law, 182formalization of rights, 229fragmentation of holdings, 74fragmentation of land

administration, 38

GGambia, 193Gender and Development Thematic

Group, 45gender bias, 44, 68, 71, 95–97,

102–103, 168, 227bride price and dowry,

93–94consensual unions, 82–83daughters, 99–101divorce, 90–93joint titling, 83–84land control, 88–90land reform, 85land rights, 70–82markets, 84–88, 86polygamy, 94–95widows, 97–99

gender equality, 69, 89, 103, 228

Georgia, 132, 167Ghana, 33–34, 34n, 35n,

39, 193green revolution, 194ngroundwater, 184, 191, 192growth. See economic growthGTZ, 43nGuatemala, 32, 47

Index 253

HHonduras, 80, 81, 148, 193, 201house and garden plots, 134–135, 200,

202–204, 203nhousehold allocation of land, 88–90,

104–105human resources, 60–61Hungary, 35n, 36, 132

IICCPR. See International Covenant on

Civil and Political RightsIFAD. See International Fund for

Agricultural DevelopmentILO. See International Labour

Organizationimplementation of laws, 4,

60–61, 177India, 76–77, 88

community-based reform, 49–50divorce, 91forest management, 209, 216, 217inheritance by daughters, 100joint titling, 81sales moratoriums, 171small plot distribution, 203tenancy reform, 122, 136widows, 97–98women, 67, 75–76, 86

bride price, 93participation, 214–215

indigenous peoples, 16, 19, 41–43, 52, 188

competing claims, 215forest management, 212group tenure, 214nproperty rights, 42n

individualization, 70–79, 146Indonesia, 34n, 42

communal rights, 139–140decentralization, 42nhouse and garden plots, 134–135,

202–203titling, 81–82

informal law, 13, 139–141, 181inheritance, 95–97, 125. See also

matrilineal systems, patrilinealsystems

intensification, 175, 177Inter-American Court of Human

Rights, 16International Covenant on Civil

and Political Rights (ICCPR), 16

International Fund for AgriculturalDevelopment (IFAD), 2

international instruments, 185,186–187, 188–189

International Labour Organization(ILO), 16

International Land Coalition, 1–2

international law, 16International Tropical Timber

Agreement, 187investment in land, 152–155, 193,

196–197investment lending, 5, 11investment projects, 27–28involuntary resettlement, 18, 20,

39–41, 40n

JJamaica, 133Japan, 54, 127, 136, 199joint titling, 79, 81–82, 83–84, 84,

103, 198

KKazakhstan, 36, 36nKenya, 129, 157, 158

registration, 34ntaxation, 133titling program, 150women’s property rights, 78

Kyoto Protocol to the UN FrameworkConvention on Climate Change, 18, 186

254 Index

Kyrgyz Republic, 68n, 129bride price, 93consensual unions, 82dispute resolution, 77household land distribution,

71, 71ninheritance, 99obstructions, 152–153polygamy, 94titling, 84, 146, 162women’s land rights, 73–74, 74n

Kyrgyzstan, 92

Lland access, 48n, 107, 199

auctions, 135Côte d’Ivoire, 35nfor the poor, 111, 123, 126

land administration, 35, 37–38

land administration projects, 5, 12,28–30, 230. See also landtitling and land registration

disputes, 40gender considerations, 43indigenous peoples, 41legal framework, 30–31property rights, 36, 36ntitling and registration, 34–35women’s land rights, 44

land dispute resolution, 43, 46–47,71–77, 115–116, 116

land distribution, 88–90, 104–105. Seealso redistribution of land

small plots (See house and garden plots)

land invasion, 196land law, 2, 3, 181

enacting, 55modernization, 3–4

land law reform, 3–4, 64–65, ixprocess, 55–56, 57public participation, 59

land literacy, 129–130

land markets, 7, 8, 13, 48, 48n, 63–64, 79

and the rural poor, 108–111efficiency, 119–125leasing programs, 87legal framework, 6–7, 142liberalization, 87–88moratoriums on sales, 170–171restrictions, 126–128titling and registration, 158–160Uganda, 141

land policy, 2, 17, 20–22, 22agricultural and forest, 179distortions, 110

Land Policy and AdministrationThematic Group, 17, 17n, 45

involuntary resettlement, 40land purchases, 63–64

Land Purchase Committee, 48, 63land purchases, 48–50, 63

collective, 88foreigners, 126transaction principles, 120

land reform, 28, 47–51, 136–139, 228India, 76–77ineffective for poor, 163Latin American, 147–148market-assisted, 137redistributive, 199–204, 199n

forest conservation, 201–202land reform projects, 48land registration, 8, 155, 229. See also

land titlingCôte d’Ivoire, 35customary and communal

land, 42deeds, 29nEnglish system, 168fees, 124legal framework, 30–37sporadic, 29, 29n, 166systematic, 29–30tenure security, 143women, 43–44, 198

Index 255

land sales, 128. See also land purchasesland tenure, 1, 2, 25, 111–118, 151,

224, 229China, 73customary, 154–155farms, 193group, 210, 212–215, 226

delimiting territory, 215indigenous peoples, 41informal, 13nprojects for securing rights, 79–84security, 33–37, 152–155titling, 143

land titling, 6, 8, 30, 42, 143, 155. See also land registration

adverse possession, 195and land markets, 158–160consolidation of agencies, 37–39credit access, 156economic growth, 152exclusion, 164–169, 174Ghana, 39household heads, 76–77individual, 75–76landlessness, 169–172ownership protection, 197–198possessory title, 168poverty alleviation, 161–164,

171–172prerequisites, 160nproblematic issues, 172–174programs, 144–150project monitoring and

assessment, 173projects, 35, 79–84, 104qualified and absolute titles,

168–169sporadic and systematic, 165targeting the poor, 164women, 80, 198

land transfers, 171land-to-the-tiller programs,

199, 199nlandlessness, 107, 136, 169–172, 174

Lao PDR, 81, 102forest management, 53–54titling, 44–45, 145–146

Latin America, 153–154, 157titling, 147–149, 167–168

law reform, 3, 4, 59–60law, rule of, 112–114LDP. See Letter of Development Policyleasing land, 87, 108–109, 110,

120–122, 128legal aid, 130legal consultants, 36n, 55, 60, 65legal drafting, 60–61, 61–63, 63n, 225

issues prompting legislation, 32–33legal education, 153, 174legal framework, 34n

community-based reform, 51conflict resolution, 115–116divorce, 92–93investment projects, 27–28land access, 108land markets, 119, 142leasing, 121mortgages, 123property rights, 114–115registration, 30–37taxation, 133–134

legal reform. See land law reform; lawreform

Lesotho, 20, 20n, 61Letter of Development Policy, 24

MMalawi, 50–51marginalized groups, 176–179, 184

land use, 225participation, 215titling, 198

market efficiency, 90, 112n, 119–125, 158

market mechanisms, 48, 109, 137leasing, 120–122

markets, 84–88, 104matrilineal systems, 81, 99

256 Index

mediation, 46, 115, 116, 230Mexico, 129, 138–139Millennium Development Goals

(MDGs), 1, 5, 8Moldova, 31n, 146, 153, 200, 201Mongolia, 54monocrop forest, 194, 210mortgages, 122–123, 170–171Mozambique, 194–195, 213

NNamibia, 126, 138nnatural resource management, 9, 28,

51–55, 176–177, 182, 189, 225by group, 184, 190by individual, 190by State, 3, 190environment, 178–179international instruments, 186land policy, 180–181projects, 53–54

Netherlands, the, 204Nicaragua, 31n, 34n, 80, 149, 154Niger, 193Non-governmental organizations

(NGOs), 2, 21, 58, 85, 182nutrient recycling, 194n

OOne Agency countries, 38ownership ceilings, 127–128

PPAD. See Project Appraisal DocumentPakistan, 109Papua New Guinea, 213, 219, 219nParaguay, 148participation. See public participationpatrilineal systems, 44, 100Peru, 82, 149Philippines, 38–39, 132

co-ownership, 83, 83nconsent for land transactions, 89forest management, 217

gender bias, 44, 44nredistribution of land, 137

Policy Research Report (PRR), 17, 47

polygamy, 94, 104, 105possessory rights, 191, 193–194poverty alleviation, 7, 49–50, 227, ix

economic growth, 144titling and registration, 160–173

Poverty and Social Impact Analysis(PSIA), 163

Poverty Reduction Strategy Papers(PRSPs), 21

Poverty Reduction Support Credits(PRSCs), 21, 24, 25

preferential rights, 126–127preservation of land, 176, 183privatization, 70–77, 84, 138–139.

See also individualizationproductivity of land, 152–155program document, 24, 25Project Appraisal Document (PAD),

37n, 49property rights, 12. See also land

tenurecreating new, 70–79, 103–104divorce, 91enforceability, 180–185,

188–189forests, 53individual assertion, 183informal, 229land administration projects,

36, 36nrecognition of, 114–115,

117–118recording of, 6resource management, 54–55seizure by State, 116–117, 116ntermination of, 115trees, 223women, 43, 70, 70n, 88

in India, 76–77in Kenya, 78

Index 257

protected area, 40n, 63, 210, 218,228–229

Convention on Biological Diversity, 188

Nicaragua, 149protected forest, 185, 208–209, 218PRSCs. See Poverty Reduction Support

CreditsPRSPs. See Poverty Reduction

Strategy PapersPSIA. See Poverty and Social Impact

Analysispublic education, 129–130public participation, 58–59, 58n

RRamsar Convention, 187, 188rangeland, 190, 196, 224–225

converting forests to, 178nextensification, 179group management, 184preservation, 175–176

RDI. See Rural Development Instituteredistribution of land, 72, 225

environmental impacts, 199–200impact on forests, 201–202periodic, 196–197State-sponsored forced, 137

regulatory framework. See legalframework

Resettlement Policy Framework (RPF),40, 40n

rights of occupation, 194–196, 195nRomania, 38, 127Rome Declaration of the World Food

Summit, 186RPF. See Resettlement Policy

Frameworkrule of law, 112–114Rural Development Institute (RDI),

70, 70nRussia, 135, 139

land distribution, 76legal aid, 130b

registration, 32ntaxation, 132. 133

Rwanda, 25, 150

SSALs. See Structural Adjustment

Loanssedimentation, 176b, 178, 191, 192seizure of land by State, 116–117,

116n, 229. See alsoconfiscation of land

self-help measures, 103, 181Shivji Report, 52nSingapore, 168–169Slovenia, 38, 204soil erosion, 176, 191, 207, 224soil mining, 176, 176South Africa, 137nSoviet Union, former, 138–139, 152

inheritance rules, 125titling, 146–147

squatters, 40Sri Lanka, 41State management of resources,

3, 190Stockholm Convention on Persistent

Organic Pollutants, 186Structural Adjustment Loans (SALs),

21. See also developmentpolicy lending

sustained yield, 219

TTaiwan, 204Tajikistan, 147Tanzania, 26–27, 59, 79, 212

forest management, 51–52, 209taxation, 124–125, 130,

132–134tenancy reform, 122, 136tenant farming, 199tenure security. See land tenureThailand, 155–156, 203n

titling, 30n, 145, 152

258 Index

The Mystery Capital, 14Tigrean People’s Liberation Front

(TPLF), 75timber harvesting, 207,

218–220, 219ntitling. See land titlingTorrens Title, 29nTPLF. See Tigrean People’s

Liberation Fronttransactions costs, 123–125transfer rights, 125tree tenure, 9, 223, 224trust funds, 60Two Agency countries, 38

UU.S. Agency for International

Development (USAID), 146, 147

Uganda, 25, 26, 68, 215attitudes toward land purchases by

women, 85co-ownership for spouses, 79consent clause, 88–89, 90credit access, 157forest management, 216group tenure, 213implementing legislation, 60inheritance, 100investment, 154joint titling, 81land markets, 158–159land transfers by custom, 141polygamy, 94–95titling, 150, 163widows, 98, 99women, 86, 91, 103

bride price, 93Ukraine, 127, 128, 153

titling, 31n, 147UN Convention to Combat

Desertification, 186UN Framework Convention on Climate

Change, 186

UNCED. See United NationsConference on Environmentand Development

UNDP. See United NationsDevelopment Program

United Kingdom, 4, 168, 169United Nations, 14, 15, 188United Nations Conference on

Environment and Development(UNCED), 16, 187

United Nations Development Program(UNDP), 61n, 72

United States, 116n, 204Universal Declaration of Human

Rights, 15, 15nuse rights, 88–90, 196–197Uzbekistan, 36

VVietnam, 24, 45, 54, 199n

Wwastelands, 223–224water pollution, 185, 190

farming, 176, 176, 178, 200water quality, 176, 178water use regulation, 192–193Water User Association, 184, 190watersheds, 189, 192widows, 79, 86, 97–99, 105wildlife, 176b, 179, 190women, 6, 7, 227

attitudes toward land ownership, 85,86, 86

dispute resolution, 77divorce, 90–93empowerment, 80exclusion from titling and

registration, 167, 174farmers, 75house and garden plots,

202–204individualization, 78inheritance, 95, 99–100

Index 259

knowledge and ability to enforcerights, 101–102

land distribution in India, 76–77land market liberalization, 87–88land rights, 43, 70leasing land, 87participation in community

reform, 85participation in groups, 214–215polygamy, 94–95, 104, 105privatization, 71property rights, 45, 67–69, 67n,

70n, 88India, 75–76Kyrgyz Republic, 73–74, 74n

titling and registration, 44, 45, 198use rights within marriage, 88–90

World Bank, 1, 12–14, xiArticles of Agreement, 14land law reform, 56, 64–65land policies, 5land reform, 47–48Operational Policies (OPs), 11,

17–20disbursement, 23n, 31n, 33–34,

34n, 55conditions, 22–34, 23n

land, 48, 48n, 63nlegal reform, 27–28

Disputes over Defaults onExternal Debt, Expropriation,and Breach of Contract, 18

Gender and Development, 43–45

Indigenous Peoples, 41–43Indigenous Peoples Plan, 19

Involuntary Resettlement, 18, 19,20, 39–41, 40n

Lending Operations: Choice ofBorrower and ContractualAgreements, 22–23, 23n

Piloting the Use of BorrowerSystems to AddressEnvironmental and SocialSafeguard Issues, 20

titling and registration projects, 160n

YYugoslavia, 36

ZZambia, 163Zimbabwe, 74, 90, 96, 96nzoning, 115n, 190, 204–205

Land Law Reform: Achieving Development Policy Objectives examines

the widespread efforts to reform land law in developing countries

and countries in transition, drawing in particular upon the experience

of the World Bank and the Rural Development Institute. The book

considers the role of land law reform in the development process

and analyzes how the World Bank has sought to support these legal

changes in borrower countries. It reviews the experience with reform

of laws affecting land access and rights in achieving gender equity,

identifies opportunities for reinforcing environmentally sustainable

development through land law reform, and examines from both growth

and poverty alleviation perspectives the effectiveness of reforms in

formalizing property rights and liberalizing land markets. The concluding

chapter recommends some basic priorities for land law reforms.

John W. Bruce is a former senior counsel in the Legal Vice Presidency

of the World Bank, and a former director of the Land Tenure Center

of the University of Wisconsin–Madison. He has published extensively

on land law and land policy in developing countries. The book’s

coauthors—Renée Giovarelli, former staff attorney, and David

Bledsoe, Leonard Rolfes, Jr., and Robert Mitchell, staff attorneys with

the Rural Development Institute of Seattle, Washington, a nonprofit

organization that promotes and adv ises on land-related policy and

legal reform in developing and transition countries—have all done

fieldwork and advised extensively on land law reform and have

published widely on this topic.

ISBN 0-8213-6468-5